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					                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


             DRAFT GREEN PAPER: COOPERATIVE GOVERNANCE


                          “Working harder, faster and smarter”1


1.     INTRODUCTION


Our national democratic and economic transformation is aimed at unleashing the full
potential of our people to shape their own destiny in a poverty-free South Africa.


Significant progress has been made in this regard since 1994 through the expansion
of social and economic infrastructure and services, provision of social safety nets,
and economic growth and development initiatives.


Yet, the levels of service delivery backlogs remain high together with high levels of
unemployment and inequality. This is both due to historic backlogs not been
sufficiently addressed and due to new growth, urbanisation and migration that is not
been appropriately planned for and managed.


These challenges require much greater focus and effort by the State to ensure better
mobilisation and use of resources for more scaled-up and speedier responses. This
means that the Developmental State that we are building must have the capability to
facilitate common purpose and social cohesion, regulate markets appropriately,
redistribute resources fairly and effectively through its spending capacity, and ensure
people-centred development. There must be seamless integrated service delivery.


There is a growing danger that the progress made thus far since 1994 and the
aspiration for an effective Developmental State is increasingly been hampered by
wastage and squandering of valuable public resources that are not reaching our
people on the ground to the necessary extent.




1
  During the 2010 State of Nation Address, President Zuma outlined the new outcomes-based
performance system for Government, and emphasised the need for all public-sector employees to
work better together and to work harder, faster and smarter in delivering services.

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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


This wastage is caused by a lack of sufficient clarity and accountability on the part of
individual institutions and organs of state to understand and carry out their
mandates, powers and functions properly. Part of this accountability includes the
need for communicating and coordinating plans and spending with other organs of
state and with civil society according to commonly agreed objectives and targets of
the country, so that more and better quality delivery and development can be
achieved for the people of South Africa with fewer resources.


In other words, cooperative governance is a central part of good governance which
is a precondition for an effective Developmental State with a focus on outcomes-
based performance. As such, there needs to be greater responsibility and
accountability for cooperative governance on the part of all public sector institutions
and civil society. This must be distinguished from the oversight responsibility for the
overall system of cooperative governance which is vested with the President and
Cabinet. In this regard, the Ministry and Department of Cooperative Governance has
been specifically established with a mandate to support government to ensure that
cooperative governance is improved in practice.


Government has already made great strides in improving cooperative governance
since 1994 through the evolution of Intergovernmental Relations and Public
Participation, macro-organisation of the State, movement towards a single public
service, and through the newly established focus on national strategic planning and
outcomes-based performance management. The Long-term plan for the country and
the performance contracts that the President has signed with Ministers will play a
critical role in further defining common purpose, enhancing policy coherence, and
improving implementation.


This Green Paper is aimed at consolidating these initiatives as part of eight critical
and interrelated objectives that have been identified for better establishing and
improving cooperative governance in South Africa. These include:
   a) Improve Common Purpose;
   b) Improve Policy Coherence;
   c) Optimise Structural Arrangements and Powers and Functions;
   d) Improve the Coordination System at local implementation level;

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     e) Improve Human Resource Capability;
     f) Support Community-Driven Development;
     g) Utilise Innovative Mechanisms; and
     h) Improve Political, Legislature, Executive and Judicial Relations and Impact


The Green Paper is aimed at facilitating discussion on the meaning of cooperative
governance, the challenges and gaps in our system, and the proposed options for
change. The Paper is structured accordingly into the following sections:
                    i.   Background
                   ii.   Definition of Cooperative Governance
                  iii.   Evolution of Cooperative Governance
                  iv.    Why a Green Paper is Necessary at this Juncture?
                   v.    Outcomes of Cooperative Governance
                  vi.    Commitment to Achieving Outcomes
                 vii.    Constraints and Options for Change
                 viii.   Conclusion




2.      BACKGROUND


The Republic of South Africa is a unitary constitutional state with federal features.
The expression “one, sovereign, democratic state” in the founding provisions of the
Constitution proclaims the unitary nature of government. The way in which the three
spheres relate to each other, is constitutionally defined. The Constitution stipulates
that government is constituted of national, provincial and local spheres that are
distinctive, interdependent and interrelated.


Distinctive means each sphere has its own identity, elected government, decision-
making powers, and is accountable for its own conduct. Distinctiveness, however,
does not mean independence as the Constitution specifically describes the spheres
as interdependent.




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Interdependent means that authority over service delivery functions is shared and
spheres are jointly bound by the principles of cooperative government set out in the
Constitution.


Interrelated means that the local and provincial spheres of government are subject
to the regulatory, supervisory and intervention authority of national government,
which sets the frameworks within which they exercise their own powers, can monitor
their activities and intervene in their affairs when circumstances permit. In respect of
local government, provincial government has similar, but not equivalent, powers to
national government.


The government system is therefore unitary, but decentralised. The three spheres
share authority for most service delivery functions, have access to an equitable
share of revenue and have an obligation to cooperate as a single system of
government for the country. The Constitution places a specific obligation on the
national sphere of government as responsible for coherent government of the
country as a whole.


The Constitution outlines principles of cooperative government to ensure effective,
transparent, accountable and coherent government. The three spheres of
government must work together in mutual trust and good faith according to principles
of intergovernmental relations set out in chapter 3 of the Constitution. These
principles compel national, provincial and local spheres of government to foster
friendly relations, assist and support one another, inform one another and consult
one another on matters of mutual interest, and coordinate their actions with one
another.


The interaction between the different spheres of government is also provided for in
section 154(1) of the Constitution, which obliges national and provincial
governments to ‘support and strengthen the capacity of municipalities to manage
their own affairs, to exercise their powers and to perform their functions’. Section
155(6) requires that provinces support local government and ‘promote the
development of local government capacity to enable municipalities to perform their
functions and manage their own affairs’.

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The Intergovernmental Relations Framework Act (2005) was enacted to give effect
to the cooperative government principles outlined in the Constitution. In practice, the
implementation of the Act has not improved integrated service delivery.


The Act also defines intergovernmental relations and institutional arrangements
within government with a focus on the vertical relations between the three spheres.
There is an inadequate focus on the horizontal relations between sectors, which is
proving to be the most difficult challenge in improving service delivery.


The Act does not adequately address the relationship between government and civil
society. There is a need therefore to move beyond cooperative government towards
cooperative governance, which, is a broader, approach aimed at ensuring that the
State and Civil Society work together more effectively.


In the local government sector, community participation is legislated in Chapter 4 of
the Local Government: Municipal Systems Act, No. 32 of 2000. It has become an
important act of good governance for local government. A number of other sector
legislation has taken up elements of public participation and community involvement
in various forms.


Both Parliament and provincial legislatures have a constitutional duty to facilitate
public involvement in their processes. The Constitution also places a particular
obligation on municipalities to involve civil society in local government matters.
National legislation provides the mechanisms for local public participation, which
include ward committees, the purpose of which is outlined in the White Paper on
Local Government.


Government has repeatedly invoked partnerships with non-government stakeholders
as desirable and as an ideal solution to overcoming the state’s own capacity
constraints.


President Jacob Zuma, addressing the Nedlac Summit in September 2009 said that:
“Our message for the next five years, ‘Working together we can do more’,

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encapsulates our attitude towards partnerships and social dialogue. This
government will not govern alone; it will be a collective effort. We will continue to
seek the active participation of all our partners and all our people.”


Dialogue between different sectors of society was a vital element of South Africa’s
transition to democracy. In particular, ongoing dialogue between government,
organised business, trade unions, and other civil society organisations, was
institutionalised with the enactment of the Nedlac Act in 1994. Social dialogue is a
process of discussion, consultation and negotiation that occurs in an organised and
systematic manner between government and its social partners. The main goal of
social dialogue itself is to promote consensus building and democratic involvement
among the main stakeholders in the economy.


Other consultative and advisory bodies have been established at national level to
promote social dialogue between stakeholders. Some of these are informal and
others are more formalized in nature. Social dialogue is less entrenched at provincial
and local levels.


3.     DEFINITION: WHAT IS COOPERATIVE GOVERNANCE?


Intergovernmental relations involves mainly cooperative government which is
concerned with the distribution of powers and functions across different organs of
state, intergovernmental fiscal relations, as well as intergovernmental and spatial
planning, and other aspects of the intergovernmental relations system.


Governance and government are not synonymous, however. There are important
differences in emphasis and scope in the two concepts, although there has been a
tendency to use the terms interchangeably in much of the writing on cooperative
government and IGR.


Cooperative governance is hinged on the word cooperation; in this context,
cooperation involves sharing of goals towards the sharing of information, joint
planning and budgeting and co-operation with regard to policy development and
implementation.

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Cooperative governance also refers both to the relationships in government, and to
the relationships between government and civil society. The government must
therefore promote the strategic interface between the three spheres of government,
but also address the relationship between government and civil society at national,
provincial and local levels. If this is done effectively, cooperative governance will
contribute to improving state capacity in partnership with social society to deliver on
national developmental priorities.


One important element of cooperative governance is co-ordination. Coordination
involves harmonisation of actions, efforts flowing from a shared purpose or vision.
This could be achieved through, amongst others, legislation and legislative
mandates of different spheres of government and departments, co-ordination of
functions or roles within a clear spatial development framework and alignment of
budgets, human resources and performance management indicators to efficiently
identify and meet priority development goals. Cooperative governance is an integral
part of the practice of good governance.


4.      EVOLUTION OF COOPERATIVE GOVERNANCE


A system of intergovernmental relations has evolved rapidly since 1994, largely
through the impetus of practice, but with some legislative direction. According to
CoGTA’s first annual report on intergovernmental relations, released in 2008, the
system has evolved through three main phases since 1994:


     Transforming the macro-organisation of the state and creating an IGR system
     (1994 – 2000): This phase centred around the creation of a single public service
     incorporating the ex-homeland administrations, establishment of the nine
     provincial governments, Cabinet reforms such as the introduction of the cluster
     system and an end to the transitional phase of local government transformation,
     culminating in the demarcation of 284 municipalities. The primary focus was
     initially on the creation of specialist intergovernmental forums and processes,
     especially concerning concurrent functions. Where legislation dealt with the
     settlement of intergovernmental disputes, these were confined to particular

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     contexts;


     Operationalising the IGR System (2001 – 2004): During this phase the IGR
     system unfolded rapidly with only minimal regulation. To give operational
     substance to the concept of cooperative government, many non-statutory
     national and provincial intergovernmental forums emerged (such as the
     President’s Coordinating Council (PCC), the Forum of South African Directors
     General (FOSAD) and provincial intergovernmental forums). This period also
     saw increased organised local government engagement in IGR as well as
     increased collaborative joint work, programmes and projects across the three
     spheres; and


•    Consolidating the IGR system (2005 to date): The introduction of the
     Intergovernmental Relations Framework Act (IGRFA) of 2005 sketched out a
     broad statutory framework for the practice of IGR, provided for the establishment
     of intergovernmental forums and a basic framework for the settlement of
     intergovernmental disputes. With the increased formalisation in the regulatory
     environment came a shift of emphasis to intergovernmental instruments
     facilitating the effective practice of IGR.”


5.      WHY A GREEN PAPER ON COOPERATIVE GOVERNANCE AT THIS
        JUNCTURE?


There has been some extensive review on the performance of government and
impact on service delivery, and these have demonstrated that development
objectives have not been optimally achieved.


Government has conducted numerous reviews of the system of governance since
1996. Some of the major reviews include the Provincial Review Report of 1997, the
Presidential Review Commission Report of 1998, the Intergovernmental Relations
Audit Report of 1998, the Ten Year Review of 2004 and the Fifteen Year Review of
2008, the Inaugural Report to Parliament on the Implementation of the
Intergovernmental Relations Act of 2008.            A review of the first term of local
government was submitted to Cabinet in 2006. From April to August 2009, a hands-

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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


on and interactive assessment of every municipality in the country was undertaken
on initiative of the Minister for Cooperative Governance and Traditional Affairs.


The question arises why a Green Paper on Cooperative Governance is necessary.
Current legislative and institutional arrangements focus on mainly intergovernmental
relations, but are not comprehensive or effective enough to address the
shortcomings of practice.      There is a need to bring clarity and purpose to
cooperative governance in South Africa though a new policy framework.
Communities still do not have adequate access to services and sustainable
development outcomes. The main reason for this includes poor coordination within
government and the need for stronger partnerships with communities. A new policy
must focus on eliminating duplication and the wastage of resources, as well as
ensuring stronger accountability. By establishing better aligned planning, budgeting
and implementation and by improving reporting, monitoring and support, the current
“silo approach” and “voluntarism attitude” can be changed.


A cooperative governance approach must ensure that contestations due to different
interests are pro-actively managed. There is a further need for clarification of the
responsibilities of spheres of government and the creation of the necessary
structures to promote co-operative behavior. Participation of all stakeholders and the
development of sound working relations among stakeholders should also be a key
tenet of the cooperative governance model.


The entire delivery chain has to be improved with better accountability and
coordination. This includes planning, budgeting, implementation, support, monitoring
and reporting.


At present, there is no statement of government’s policy or strategy in respect of
cooperative governance. While such a policy could be constructed from aspects of
the constitution and the IGRFA, as well as a variety other laws and policy
documents, there is no single overarching policy document that addresses issues of
decentralization, cooperative government and participatory democracy. This
represents a significant policy vacuum contributing to considerable ambiguity on
fundamental policy questions relating to decentralisation, subsidiarity, the structure

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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


of the state, allocation of powers and functions across the three spheres, and the
role of the provincial government sphere.


This Green Paper on Cooperative Governance is a signal of Government’s wish to
radically improve coordination within government and between government and civil
society with the aim of enhancing the impact of public spending and mobilising
resources and talent that is found across all sectors of society. In October 2009, the
Cabinet approved that a Green Paper on Cooperative Governance be developed.


6.      OUTCOMES OF COOPERATIVE GOVERNANCE


Cooperative governance is not an end by itself. It is a way of working and functioning
that enables communities to experience cohesion, predictability, excellence in
service delivery, and control over their future.


These are the outcomes we would like to see from a functional cooperative
governance system:
a) Service delivery is efficient, affordable and accessible in compact ways to the
     poor;
b) There is zero tolerance for duplication, wastage of resources, and negative silo
     operations;
c) The authority and accountability of every organ of state is clear and the need and
     costs of coordination reduced;
d) The institutional arrangement in government including allocation of powers,
     functions and resources are responsive to the different spatial, settlement and
     capacity considerations that prevail;
e) Skills and capacity are consolidated and used optimally, and support is well
     coordinated and provided systematically where it is required;
f) The division of functions support national equity, responsiveness and
     accountability to communities, and innovation
g) The state has an early warning system for institutional failure and a plan for
     addressing dysfunctional institutions;
h) The state has the capacity to generate data and information for long range
     planning and to determine policy impact;

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i) Coordination is directed at outcomes and outputs, not structures and processes;
j) Adequate funding follows functions when they are devolved; and
k) De-concentrated administration in respect of national and provincial functions is
     established so that government is closer to the people.


7.      COMMITMENT


In order to achieve the outcomes illustrated above government is committed to
restoring    accountability    by    removing      the      voluntarism   associated      with
intergovernmental relations and improving oversight. This voluntarism results in
duplication and incoherence brought about by “silo” approaches. It also results in
communities been pushed from pillar to post when accessing information or
services. It also compromises the delivery of services in integrated and compact
ways to communities.


On the international front, this voluntarism harms the image of the country when
individual municipalities, provinces or national departments act outside of national
frameworks and do not share information and knowledge on visits with each other.


Government is also committed to working better with civil society and to tap into the
broad range of resources, talent and expertise that are found across all sectors of
society.


Radically improved and accountable Cooperative Governance is a key ingredient
and precondition for a successful Developmental State. In our commitment to
building a Developmental State that must steer society to accelerate national
democratic and economic transformation, we do not want to be State-Centric.


The South African Developmental State must be rooted in our own traditions and
struggles. It must be people-centred and therefore cooperative governance, defined
as coherent government working together with communities and civil society
including the private sector at all levels, is essential.




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Tensions are naturally inherent in any system of governance e.g. concurrent powers
and functions, distinctiveness of the three spheres of government. There are always
competing views and interests. Therefore, our desire for cooperative governance,
implying better purposeful relations within and outside of government, is not
idealistic. It will have to be improved over a period and has to be managed on a
continuous basis. What is important is that tighter and clearer objectives,
mechanisms, incentives and penalties for cooperative governance should be
defined.


8.     CONSTRAINTS AND OPTIONS FOR CHANGE


The Constitution and current legislation are confined to addressing cooperation
within government and this is limited to principles, structures and processes. They
do not go far enough to focus sufficiently on accountability for integrated outcomes
and sustainable development impact.


The relationship between government and communities is also limited to facilitating
public participation in matters of government. It does not sufficiently address the full
involvement, ownership and oversight by communities even though in the
developmental local government system, municipalities are defined to include the
communities that reside within their boundaries.


In practice, the current paradigm is still predominantly one of “delivery” without
sufficient responsiveness and accountability. In this situation communities have
largely been demobilised, therefore sit back, and wait for government to deliver. The
social distance between government and communities grows and frustration mounts
with service delivery failures.


The shift to Cooperative Governance creates a broader scope for more purposeful
and accountable intergovernmental relations. It also creates new scope for
government to facilitate (rather than promise and not deliver) community-driven
development and self-reliance, and to be more accountable to communities for
commitments and outputs.


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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


A major constraint to cooperative government has been a lack of a driver within
government to oversee the cooperative governance system as a whole. The
establishment of the Ministry and Department of Cooperative Governance is an
important move towards establishing the relevant capability to support the President
and Cabinet to oversee and drive cooperative governance.


There are a number of related factors constraining cooperative governance, which
have to be overcome if we want to considerably improve service delivery and
development. These factors are identified through the various comprehensive
assessments and studies conducted including the Fifteen Year Review, Policy
Review on Provincial and Local Government, State of Local Government and Local
Government Turnaround Strategy. Most importantly, role clarification or clarity
related to powers and functions and community participation and involvement in their
own development.


In the section below a brief description for each constraint and proposals on how the
constraints to cooperative governance can be addressed and how the outcomes of
cooperative governance could be realised are discussed.


8.1   COMMON PURPOSE

The developmental effort across the three spheres and in cooperation with civil
society and other stakeholders has been compromised up until now by a lack of a
clearly outlined long-term national developmental vision and plan broken down into
sets of targets across sectors and spatial areas.


National Strategic Planning


Following the national and provincial elections in 2009, government has sought to
address these deficiencies with the appointment of a new Minister in the Presidency
responsible for planning, the proposed establishment of a National Planning
Commission, and the release of a green paper on national strategic planning.




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The Green Paper on Planning was issued by the Presidency in August 2009 as a
discussion document on national strategic planning. The document recognises a
number of deficiencies with government’s development planning including the
absence of a strongly articulated national vision of South Africa’s future and a
common developmental agenda. The Green Paper proposes that the planning
function in the Presidency will lead in the development of a long-term national
strategic plan. This will be a 15-year plan to be finalised in the course of 2010 and
will become South Africa’s Vision 2025.


Such a vision would act as a centripetal force in the intergovernmental planning and
cooperative governance systems facilitating harmonization and alignment of plans
and mobilizing actions across government and civil society. A national plan will play
a vital role in providing direction and to the system of cooperative governance.


Supporting outputs in the planning process also include the five-year MTSF and the
National Programme of Action, research and data on topics that impact long-term
development, and the development of high-level frameworks for spatial planning.


Aligning of cycles


Currently there are different electoral cycles for provincial and national government
on the one hand and local government on the other hand. The local financial year is
also different from the national and provincial financial year. This means that there is
a lag of several months between the announcement of strategic priorities for the
country and the commencement of municipal budgeting and planning. Fiscal
dumping occurs when a department transfers funds to another organ of state at the
end of the financial year as a strategy for balancing its books. Different financial
years also result in different planning cycles. While national and provincial
departments plan at the same time early in the calendar year, local government
plans later in the calendar year when departments have already completed their
strategic plans. In effect, the spheres plan separately despite the fact that the
municipal IDP is to be an integrated plan that informs provincial and national
expenditure. The impact of separate financial years on the coordination of plans and
priorities across the spheres does appear to make coordination overly elaborate and

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complex.


OPTIONS FOR CHANGE

There is a need to better shape and manage a common purpose across
government and society to which strategic coordination and implementation must be
directed. Government has already significantly moved on this area with the
publication of the Green paper on planning and the establishment of the National
Planning Commission in the Presidency.


The formulation and implementation of a long-term development plan for the
country as a whole must be promoted through cooperative governance. The
National Planning Commission will drive this process of developing a long-term
development plan for the country.


The development of a national strategic plan is important in strengthening
development planning in South Africa. It however, will not be sufficient to overcome
the limitations and constraints that have hampered more coordinated planning and
budgeting previously. A clearly outlined intergovernmental planning system is
needed and this system needs to be institutionalised. This will require a more
comprehensive look at planning instruments like the IDP, sector planning processes,
the role of IGR structures, as well as the need for an unambiguous policy and
regulatory framework and an investment in planning capacity through the state. The
long-term development plan should be used as a framework for planning at other
levels including sector plans, provinces and municipalities. The IDP should become
truly intergovernmental, and allow for differentiation and contextualisation of local
conditions.


The newly established outcomes-based performance monitoring system for
government is important for shaping and managing common purpose in a delivery
focussed manner. The system will itself have to be informed by long-term planning
and guide key strategic actions throughout government.




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The importance of high-level institutions such as NEDLAC as an instrument for
cooperative      governance     should   be    acknowledged.      Although     tension    and
disagreement is inherent in any governance system, there should be a genuine
effort to mediate across the different interests. The facilitation of social dialogue at
all levels of government should be part of the cooperative governance approach.


Vision 2014 for local government includes the proposal for a single election for
national, provincial and local government. This will create a common 5 year medium
term planning cycle in government. Some of the benefits of such a single cycle are:
      •   Single electoral mandate during a five year term for all three spheres of
          government;

      •   Better alignment of planning priorities across all spheres of government;

      •   Integrated public administration;

      •   Overall reduction of costs of running elections on the country;

      •   Improved inter-governmental alignment and coordination of resources to local
          government for service delivery to the people.



8.2       POLICY COHERENCE


We need greater improved policy coherence in order to overcome, inter alia,
negative silo driven implementation and multiple divergent frameworks, funding
streams, conditionalities and requirements that flow to municipalities and
communities.


The policy, legislative and regulatory framework for cooperative governance is
complex and fragmented. A raft of policies and laws regulate different aspects of the
system of cooperative governance. There is no comprehensive policy or law
governing all aspects of the system. This has led to gaps and inconsistencies in the
system that at times have constrained cooperative governance.




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At present, there is no statement of government’s policy or strategy in respect of
cooperative governance. While such a policy could be constructed from aspects of
the constitution and the Intergovernmental Relations Framework Act, 2005, as well
as a variety other laws and policy documents, there is no single overarching policy
document that addresses issues of decentralization, cooperative government and
participatory democracy. This represents a significant policy vacuum contributing to
considerable ambiguity on fundamental policy questions relating to decentralisation,
subsidiarity, the structure of the state, allocation of powers and functions across the
three spheres, and the role of the provincial government sphere.


OPTIONS FOR CHANGE


To ensure better policy coherence there should be a government-wide focus on the
national long-term development plan. All planning instruments of all spheres and
organs of state should be aligned to it and sector policies and plans must be
informed by it.


Consideration should be given to set up a Protocol for Policy Development in the
country that would enable all policy to be informed by the impact it would have on all
spheres and on communities. There should be an assessment of the impact of
policy on the allocation of powers and functions, its fiscal implications and its effect
on decentralisation. A clearinghouse mechanism should be considered to manage
such a function prior to departmental policies reaching the Directors-General and
Cabinet Clusters.


There is a further need to monitor policy implementation and its impact. Role-players
that need to be involved in such a process could include, inter alia, the Presidency,
CoGTA, the DPSA and National Treasury, supported by a network of research
institutions, policy think tanks and tertiary institutions.




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8.3    OPTIMAL STRUCTURAL ARRANGEMENTS


We need a more optimal structural arrangement including appropriate distribution
of powers and functions across and within the three spheres of government in order
to limit the need for unnecessary coordination.

There is a lot of uncertainty over powers and functions in government. Managing
government in this context is even complex considering that the assignment of
functions between tiers and spheres inevitably produce overlaps and uncertainty
over the precise definition of functional divisions.


Based on the reality that functional definitions in law can never capture the
complexities of governance, the Constitution emphasises co-operation between
spheres of government as an important pre-requisite for effective government.
Spheres of government must resolve differences and avoid conflict by using the IGR
mechanisms described above. The framework for the conclusion of Implementation
Protocols represents an opportunity in this respect.


However, accountability is the foundation of democracy. Knowing where to place
responsibility for inadequacies in service delivery and governance is the first step
towards addressing those inadequacies. There are instances where cooperation
becomes a poor substitute for clear assignment of responsibility; in those cases,
there is a need for clear definition in law.


Ordinary statutes can define functional areas. There are examples at both national
and provincial level. For example, the National Health Act (no 61 of 2003) defines
the competency ‘municipal health services’.


Pronouncements by the courts can also resolve conflicts over functions
responsibility. However, court action is a measure of last resort. South African courts
have also shown reluctance in providing detailed guidance on the division of
responsibility between spheres of government.




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A more drastic mechanism is the strategy to revisit the division of functions by
amending the distribution put forward in the Constitution or by transferring powers
and functions through assignment or delegation.


The most radical of mechanisms to deal with the complexity is a reduction of the
number of relationships, i.e. revisiting the configuration of the decentralised state.


The distribution of functions across the three spheres of government has led to
complexity and a lack of certainty in the intergovernmental system. There are gaps,
overlaps and contradictions in the functioning of government as a consequence.


The provisions permitting the assignment and delegation of additional functions to
provincial and local government exacerbate this complexity. Although, instruments
do exist to manage assignment and delegation of functions such as agency
agreements and implementation protocols, these are often not used, nor complying
with the specific Constitutional provisions governing these processes.


Concurrency makes alignment difficult. It also makes accountability difficult. National
departments with concurrent functions do not always exercise sufficient oversight of
their provincial counterparts, or provide adequate support, as directed by the
Constitution.


Coordination is often complicated by arrangement where one sphere is responsible
for policy, planning and regulation of a specific function, another sphere responsible
for financing and monitoring, and another sphere for implementation.


There is a high degree of ambiguity about the specific role and accountability of
each sphere of government in respect of many functions. It complicates planning
and budgeting, and makes accountability diffuse and difficult to manage. It can lead
to unfunded mandates, non-performance of functions, and blurred accountability for
serious delivery failures. Assessments of local government strongly suggest that
municipalities have been constrained by a lack of clarity about the functional areas
listed in Scheduled 4 and 5 of the Constitution.


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There is only a small degree of differentiation between types of municipalities in the
allocation of functions, and there is no differentiation in respect of provinces. For
example, largely rural provinces suffering from severe poverty and infrastructure
backlogs cannot prioritise the same set of functions as highly urbanized provinces,
which need to respond to high levels of inward migration and complex economic
activities.


The allocation of functional responsibilities between the spheres


The Constitution allocates legislative and executive authority and powers to all three
spheres of government. This means each sphere has the right to function as a
government and is given the means to do so. Each sphere’s status and powers are
protected from encroachment and interference by the other spheres of government.


The scope of their powers is however very different. National government has more
extensive powers than the other two spheres. It has sole authority to pass and
implement legislation on any matter not listed in the Schedules to the Constitution,
exclusive control over the major taxing powers, and extensive powers to regulate,
override, supervise and intervene in the affairs of the other two spheres. With the
exception of the exclusive provincial functions, where its jurisdiction is excluded,
Parliament can also legislate on concurrent functions. By contrast, provinces and
municipalities are restricted to exercising their powers only within their territories and
then only with respect to specific matters listed in Schedules 4 and 5 of the
Constitution. Provincial legislation and municipal by-laws have no validity outside of
their jurisdictional boundaries or listed competences.


The Schedules provide for three kinds of functional areas: concurrent functions
(Schedule 4), exclusive provincial functions (Schedule 5) and local government
matters (Parts B to Schedules 4 and 5).


Concurrent functions


Concurrent functions are shared competences of national government and provincial
government, as illustrated in Schedule 4 Part A, meaning that both spheres can

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enact laws for these functional areas. To illustrate, Parliament and a provincial
legislature can both enact their own legislation to regulate agriculture.


Exclusive provincial functions


Provinces have exclusive legislative competence over the functions listed in
Schedule 5, which includes the local government matters listed in Part B of that
Schedule. The "scope of a provinces’ power over local government matters is
however restricted to providing regulatory frameworks to supervise municipalities.
They cannot compel municipalities to make decisions. Parliament is excluded from
passing legislation in respect of exclusive powers, but can intervene when specific
grounds relating broadly to national interests exist and intervention is necessary.


There are a number of mechanisms to deal with the tensions that arise out of a lack
of clarity over responsibilities distributed over many spheres of government.


Local government matters


A municipality has “the executive authority and the right to administer the local
government matters” set out in Parts B of Schedules 4 and 5 and functions assigned
to it. These functional areas include electricity and gas reticulation, municipal health
services, municipal public transport, potable water supply, domestic waste water and
sewage disposal (Schedule 4B), and municipal roads, public places and refuse
removal (Schedule 5B).


This authority includes the power to make and execute by-laws. The Constitution
makes it clear that “a municipality has the right to govern, on its own initiative, the
local affairs of its community.




OPTIONS FOR CHANGE


The macro-organisation and configuration of the state must be reconsidered to
position different levels of government appropriately. There should be a better

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allocation of roles, powers and functions across the state, which should include
addressing the current fragmented approach in managing allocations and problems
with the way Local Government functions are defined in schedule 4 and 5 of the
Constitution.


A management authority within government as single point for the movement of
powers and functions across all three spheres of government may need to be
established. Such an authority would have to operate within the ideal allocation of
powers prescribed in the Constitution and would have to look towards the coherence
of the entire system of government. It should do so by managing the reality of
differentiation and changing capacities across government levels. An optimal system
should limit unnecessary coordination and simplify interaction.


The establishment of an optimal system of cooperative governance should assist to
re-organise national and provincial government towards local level implementation.


The introduction of a Single National Act governing powers, functions and
global equitable share split between the three spheres would inject certainty,
stability and coherence into the system as a whole. The Act would specify the
powers and limitations of the management authority. It would set out a clear vision
for decentralisation, provide a coherent framework for a controlled management of
devolution. National legislation regulating functional arrangements of sub-national
powers and functions could include the following:


       Set out a national framework for assignment and de(centralisation);
       Provide standard definitions for all functional areas;
       Provide procedures for allocating functional areas to levels of government;
       Provide a mechanism to review functional allocations periodically;
       Link functions to resource allocation; and
       Define minimum capacity, norms and standards for service delivery functions.


The role and position of provincial government in the state must be settled. Greater
stability and performance can be achieved by introducing comprehensive
framework legislation on provincial government. This would both normalise the

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role of provincial government in the system by treating this sphere in the same way
as local government rather than a structure entirely of the Constitution. Many
stakeholders, including several provinces, have expressed support for national
legislation. The legislation would clarify the role of provinces in planning, service
delivery, and concurrency; define its supervisory relationship with local government;
provide for a statutory demarcation process; and set indicators for provincial
performance.


The following elements could be considered:


   Define the role and functions of “developmental provincial government” in
   national legislation;
   Provide a framework for establishing provincial departments;
   Define concurrency in the context of national priorities, provincial service
   delivery, planning and development;
   Clarify the relationship with traditional leadership;
   Set indicators for provincial government performance and norms and standards
   for provincial service delivery and organisational structures, and provide for
   accountability mechanisms to national government;
   Define national government’s responsibility to support and intervene in provinces;
   Introduce a national capacity-building programme for provinces;
   Provide for a statutory demarcation process instead of a constitutional process;
   Regulate the support, monitoring and intervention roles of provinces in respect of
   local government; and
   Review the assignment/centralisation/decentralisation framework for powers and
   functions between the three spheres of government.


The current two-tier system of districts and local municipalities is complex and
ineffective. It may be preferable to simplify the system by establishing a single tier
of local government and abolishing district municipalities. Aspects that need to be
considered if a single tier of local government is established include:


   •   Separation of powers between the executive and legislative authorities;


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                              Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


      •   Assigning district service functions to restructured municipalities and
          provinces;
      •   Re-demarcation of local municipal boundaries;
      •   Creating shared administrative and service centres for local municipalities to
          replace district offices, which can be co-ordinated by the provincial
          government; and
      •   Regionalising key provincial government functions.


The intergovernmental fiscal arrangements must match this new structural
arrangement.


8.4       COORDINATION SYSTEM AT IMPLEMENTATION LEVEL


Coordination within government relies on process as intergovernmental planning,
IGR structures as well as IGR processes as monitoring, supervision, and
intervention as well dispute resolution and support.


Intergovernmental planning


Insufficient alignment of planning in each sphere of government has resulted in
national priorities not being incorporated into provincial and local plans, while
municipalities and provinces have not always been able to influence national
planning and resource allocations.


Some of the identified structural weaknesses in municipal planning, but also in
intergovernmental planning at all levels of government are:


      Baseline information informing planning as a whole, but which impacts on IDPs,
      such as the housing shortage or health and educational requirements are often
      incorrect, rendering municipal plans unrealistic. This weakness compounds an
      inability to analyse socio-economic information;
      IDPs have little strategic focus and there are weak links between Spatial
      Development Frameworks (SDFs) and other aspects of the IDP, even though


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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


   SDFs should be a reflection of strategic planning and a representation of desired
   spatial arrangements;
   Inter-and intra-sphere alignment is generally weak while district and provinces as
   supporting institutions are also weak. Inter-governmental relations have in many
   instances not been effective. As a result, IDPs bear little relation to national and
   provincial plans and in some instances have led to conflict between local
   planning decisions and national programmes such as land reform or land claims;
   and
   Intergovernmental relations have been the weak links in the management of the
   space economy with hardly any regional perspectives on how resource
   management and economic development informs IDPs and infrastructure
   investment.


Unfortunately, the participation of sector departments and government agencies in
municipal IDP processes has been uneven at best, resulting in a gap between the
plans of the three spheres and a missed opportunity to exploit potential synergies
from more collaborative action and avoid wastage and duplication. National IDP
hearings undertaken in 2005 and 2006 documented poor coordination, lack of
sector-wide coordination, resulting in inefficiencies and undermining development
efforts.


An assessment of the nine PGDS documents in 2006 found several weaknesses
with the plans, as well as the process of formulation of the plans. These included
weak or superficial intergovernmental alignment; weak programme integration within
the provinces; and weak spatial analysis. Reasons for this included capacity
constraints in provincial governments, especially in respect of spatial and economic
analysis; sub-optimal IGR; lack of clarity about departmental roles in championing
the PGDS process; general absence of a regional development perspective; and
uneven public participation and stakeholder engagement in the processes.


IGR Structures


The evidence available on the functionality of IGR structures reveals a number of
weaknesses which constrain their effectiveness. Some of these weaknesses are

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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


rooted in the policy and legislative framework which is marked by insufficient clarity
on the role and status of IGR forums; other weaknesses in the functioning of IGR
structures derives from capacity constraints within the system including the absence
of strong secretariat support for many structures; and there are also weaknesses
that originate in political and people dynamics such as power dynamics and a lack of
leadership.


The decision-making status of IGR structures is unclear, and this uncertainty has
resulted in inconsistent practices, unreasonable expectations and unconstitutional
conduct. For example, MinMecs are the primary structure for consultation and
coordination of national and provincial government in respect of concurrent
functions, yet it is clear that MinMec decisions are not binding on Provincial
Executive Committees.


The ambiguity in respect of the decision-making status of IGR forums has led to
intergovernmental tensions and even disputes. One such dispute occurred when a
MinMec used its perceived decision-making authority to reject housing accreditation
for the City of Cape Town. The result was a declared dispute between the city and
the province. This kind of incident reflects the ‘joint decision-making trap’ that arises
from ambiguous reporting lines and decision-making powers in the system of IGR
structures.


There is a need to move beyond form to more substantive engagement in IGR
structures, to advance beyond a narrow focus on compliance with the IGRFA to a
more strategic and values-driven approach to intergovernmental engagement.


The functioning of IGR structures is further hampered by weak secretariat support.


Monitoring, supervision and intervention


There are challenges to an effective system of intergovernmental supervision:


   There is no national legislation regulating the intervention powers, and this has
   led to inconsistent approaches to interventions, powers being used on

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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


   impermissible grounds, and no clear link between programmes of support and
   intervention;
   The credibility of key data sets, particular figures relating to services and
   infrastructure backlogs in some sectors is an acknowledged problem;
   There is limited capacity to detect signs of institutional or social distress early on
   before it becomes a problem. A study into the capacity of provincial departments
   of local government shows that they have limited capacity for monitoring; and
   Reporting systems are overly elaborate, and reporting requirements frequently
   overlap, according to an assessment undertaken by an intergovernmental task
   team.


Since the introduction of the Constitution to date, 46 interventions were undertaken
from 1998 to March 2010 in terms of 139 of the Constitution and five interventions
were instituted in terms of section 100 intervention. Analysis of the interventions that
have taken place in municipalities by COGTA suggest three main causes of the
failures to meet municipal executive obligations are municipal governance; financial
mismanagement; and to lesser extent service delivery failures.


OPTIONS FOR CHANGE


In order to improve coordination and implementation there is a need for all actors to
operate off a single plan at regional level. A number of proposals could be
considered for transforming the Intergovernmental IDP as a key cooperative
governance instrument and window for coordination at regional level that
would be followed by everyone and be applicable to all spheres of government,
SOEs and outside stakeholders.


The IDP could be reconceptualised on a regional level (this could be metro and
district, or functional development regions). This would reduce the myriad of IDPs to
a more manageable number of planning instruments for development.


The Intergovernmental IDP should become the key cooperative governance
instrument for the relevant regional space, thus being more than just the plan of a
municipality. As part of the simplification process of IDPs, it should become a long-

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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


term planning instrument at regional level and not be subject to annual review as
currently is the case.


The IDP Forum could be transformed into a statutory body, which is the key
cooperative governance coordination mechanism at a regional level. It should
consist of national government, provincial government, local government, SOEs,
labour, business, stakeholders, civil society.


To strengthen the provincial support and oversight role, it is proposed that Premiers
or their delegate (MECs) chair the Intergovernmental IDP forums. In addressing
capacity constraints, it is recommended that Intergovernmental IDP forums be
supported by a CoGTA secretariat (consisting of officials from the national
department and provincial counterparts).


To encourage an outcome-based approach, consideration should be given to
strengthen the role of CoGTA in ensuring aligned planning through the
Intergovernmental IDP. The Minister of CoGTA could for example finally approve the
IDPs, but only after all the critical stakeholders in the Intergovernmental IDP forum
have signed on to the Intergovernmental IDP. The Minister of CoGTA should also
receive an annual report of progress with IDP outcomes.


To provide a coordination instrument at national level it is proposed that a National
Cooperative Governance Forum could be established. The NCGF would advise on
approval of IDPs and would be convened by the Minister of CoGTA and include the
Ministers in the Presidency, the Minister of Public Service and Administration and
the Minister of Finance, Premiers and MECs.


The linkage between the NCGF and other policy coordination instruments such as
Cabinet Clusters, Minmecs and Delivery Forums will have to be considered. The
relationship between the budget process in government and the development of
IDPs would also have to receive attention that is more detailed.


The proposed establishment of Regional IDP Forums and a national Cooperative
Governance Forum impacts on existing IGR structures. It is therefore proposed that

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IGR structures are streamlined and consideration be given to abolishing District
IGR Forums and PCFs. In terms of the PCC, consideration should be given to
merge its function with that of the Extended Cabinet Meetings (makgotla) which
would be the forum where the National Strategic Plan, the MTSF and the PoA would
be discussed and adopted.


The IGR system is characterised by a lack of a single window for coordination
across government. Apart from the Constitutional provisions in sections 100, 139
153, and 154, there is no additional legislative framework for support,
supervision and intervention or an early warning system for institutional failure.
Although provinces have a constitutional obligation to supervise local government,
this is hampered in practice by their limited capacity. There is also lack of monitoring
and evaluation mechanisms across the three spheres of government.


The absence of a legal framework for intergovernmental monitoring, support and
intervention is a major institutional gap. As a result, there is no effective early
warning system, support and capacity-building effort is poorly coordinated, and
provincial monitoring capability practically non-existent. The next generation of
intergovernmental reforms should increasingly focus on “contracting” with sub-
national levels to achieve medium-term development targets, and providing
appropriate incentives for performance against these targets. Sub-national reporting
systems are also overly complicated, and often duplicated. Over time, these should
be streamlined and progressively linked to the set of national indicators contracted
with sub-national government. CoGTA, the National Planning Commission, and the
Ministry for Performance, Monitoring and Evaluation in the Presidency should jointly
address the challenges of coordination, monitoring and support.


CoGTA must strengthen its capacity to coordinate the local support programmes of
other departments. A key principle in the pursuit of improved cooperative
governance must be the adoption of a single window of coordination for the
support and oversight of local government. Efforts to build capacity of local
government must be consolidated and streamlined.




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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


The fourth aspect is the need to establish a coordination system for planning,
budgeting, implementation, monitoring and reporting. Such a system has to be
outcomes focused, more inclusive and engaging with civil society, and be driven with
authority rather than through the existing IGR structures format.


8.5   PUBLIC SERVICE AND HUMAN RESOURCE CAPABILITIES


We must focus on human resource capability of the public service to turn
cooperative governance into a reality through the day-to-day functioning of the state.
This capability must be centered on allocating clear responsibilities and tasks,
managing performance and accountability, and maintaining high levels of ethical
standards and values.


Organisational, managerial and people factors can limit the functionality of the
cooperative governance system. The behavior of individuals is a crucial factor in
cooperative governance. The following people factors have been found to impede
cooperative governance:


      •   A shortage of skills needed for coordination, stakeholders engagement,
          meeting management
      •   Weak leadership
      •   Low levels of trust
      •   High levels of cynicism and negative perceptions towards cooperation
      •   Weak relations between officials in different organisations
      •   Narrow self-interest
      •   Low levels of commitment
      •   Lack of knowledge and understanding about the system of cooperative
          governance


A feature of a cooperative governance culture would be to see it as a way of
working, and would be characterized by mutuality and reciprocity. A silo-mentality is
very much still in evidence, as well as a traditional bureaucratic and hierarchical
culture that impedes working across organisational boundaries.


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Cooperative governance also requires appropriate and robust management
systems, which are not always in evidence in many departments or municipalities in
government.


For example, performance management systems do not adequately cater for
cooperative governance. Joint work is often not measured or rewarded, and
incentives for collaborative work are weak.


Single Public Service (SPS)


Currently service delivery is hampered by weaknesses in numerous areas including,
amongst others, national frameworks and policies that do not extend to Local
Government in the areas of service delivery and public administration and
management.


The greatest challenge involves aligning the human resource management practices
between the public service and municipalities. This involves aligning the current
remuneration grading and conditions of service dispensations.


The absence of a single dispensation for all public servants across the three spheres
of government has been identified as a major constraint to joint work and
coordinated implementation. The single public service (SPS) is an initiative intended
at harmonising the conditions of employment across the three spheres in order that
government as a whole works better. In its conceptualization, the SPS is seen as a
critical and strategic intervention to further enhance and strengthen the capability of
the system of government (across the three spheres) to be able to deliver the State’s
developmental agenda.      For enhanced service delivery and better integration of
efforts, the SPS is based on the fundamental premise that the institutions across the
three spheres of government that comprise the machinery of State have to be
strategically aligned and harmonized to complement one another so as to more
effectively fulfil the needs of SA society. In accordance with the resolutions taken at
Polokwane on the SPS, the draft legislation for the SPS is currently under


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                              Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


deliberation at the political level through an appointed structure (the Legislature and
Governance sub -committee).


At the administrative level, it may serve to provide a short input on the strategic
objectives, which are set out in detail in the document entitled “A strategy toward the
development of overarching legislation for the Single Public Service. In summary,
they include the following:


•   Deepen integrated service delivery by creating service delivery points from which
    the citizen can access a basket of public services. Multiple institutions are to
    collaborate on creating a “single window” of access.


•   Strategically align the institutions that comprise the machinery of the
    developmental state to complement one another to operate effectively and fulfil
    the needs of South Africans.


•   Create common norms and standards for human resource management and
    development and conditions of service across the three spheres. This will enable
    the mobility of expertise across the three spheres to any government department
    or municipality.


At a much more detailed operational level, the proposals are that the SPS must
cover critical areas necessary for ensuring the existence of capable and sustainable
service delivery institutions at all spheres of government.           These areas include,
amongst others, the following:


•   Deepen integrated service delivery by creating service delivery points from which
    the citizen can access a basket of public services. Multiple institutions are to
    collaborate on creating a “single window” through which citizens can access a
    range of services be it a service delivered at the local, provincial or national
    spheres.




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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


•   Strategically align the institutions that comprise the machinery of government to
    complement one another and be better aligned to operate effectively and fulfil the
    needs of South Africans.


•   To create a common culture of service delivery, based on the precepts of Batho
    Pele, in order to ensure a consistently high standard of service from the public
    service corps;


•   To stabilise and strengthen intergovernmental relations, recognising the
    distinctiveness of the spheres while emphasising their interdependence and
    interrelatedness;


•   To achieve more coherent, integrated planning within a Single Public Service, in
    general and specifically in relation to joint programmes;


•   To create a single senior management service cadre, where appointment would
    be to the service rather than the post, facilitating the mobility of these managers
    within the Single / Integrated Public Service;


•   To provide a uniform framework of remuneration and conditions of service for the
    Single / Integrated Public Service;


•   To establish uniform norms and standards for employment in the Single Public
    Service, including employment practices and employee relations frameworks and
    mandating arrangements;


•   To provide a mechanism for the approval of deviations from the norm in
    exceptional circumstances;


•   To provide a mechanism for the transfer of             functions and staff between
    institutions or spheres of government, within the framework provided by the
    Constitution and the Labour Relations Act;



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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


•   To ensure that e-government governance, information and communication
    technology regulations, norms and standards are adhered to within the Single
    Public Service;


•   To provide for a human resource development strategy for the Single Public
    Service and the development of an integrated skills database to support human
    resource planning; and


•   To provide for an anti-corruption strategy and standards of conduct for the Single
    Public Service.

.One of the challenges in the delivery of basic services is a shortage of management
and leadership skills. Through the Single Public Service, it will be much easier to
move skills from other spheres into local government, and between different local
government structures.



Human resource management


The Public Service Commission (PSC) in its 2009 report on the “State of the Public
Service” found that consistency in the application of critical norms and standards for
human resource management at national and provincial level is still unsatisfactory.
This takes place at a time when skills development is not optimal, Workplace Skills
Plans are weak and Sectoral Education and Training Authorities are generally not
seen to be as effective as expected.


In terms of capacity and skills the biggest challenge on local government level is
that, there are few incentives for attracting and retaining appropriate skills to poorer
areas. As a result, they lack the human resources capacity to deliver on their
constitutional and legal mandate and on citizen expectations. The ‘State of Local
Government Report’       indicated that many municipalities are struggling with high
vacancy levels, absence of critical implementation competencies, irregular or
inappropriate appointment, poor skills development, dysfunctional human resource



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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


management and weak institutional management. There is also poor performance
accountability at individual and institutional level at local government level.


OPTIONS FOR CHANGE


We need an integrated and capacitated public sector. The public sector will not be
able to deliver services better without giving due attention to properly skilled
individuals and to important aspects such as ethics, attitude and behaviour.


The development and implementation of a Public Sector Development
programme should be considered to set norms and standards for all public servants
in national, provincial and local government. The strengthening of the Disciplinary
code in the public service must have common elements across all three spheres of
government. This must contribute to the development of an integrated public
administration.


The Single Public Service is based on the principle that the institutions across
government (whether local, provincial or national) that comprise the machinery of
State have to work together to more effectively fulfil the needs of the South African
society. This means that their structures must be aligned and structured in such a
way that there are no barriers to cooperation, especially on the following:
•   Human resource management and development,
•   Service delivery,
•   Information and Communications Technology,
•   Anti-corruption, and
•   The design of framework legislation.


Various national transversal public service and financial management programmes
and initiatives driven by core national departments and entities (such as DPSA,
PSC, and NT) must be accelerated. These are aimed at improving the governance,
systems, HR, performance and financial capability of the public service in general
and will have a positive impact on local government. Weaknesses and failures in
national and provincial government impact negatively on municipalities.


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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010




To ensure its success, mainstreaming cooperative governance requires that it is
incorporated into the performance agreements and needs to be considered a core
competency of public sector managers. This holds the promise of the wider fostering
of a culture of cooperative governance throughout the three spheres of government.


The fight against corruption, nepotism and all forms of maladministration
must be intensified across government and especially at local government in both
the   political   and   administrative   domains.    Procurement       and   supply    chain
management processes must be strengthened to ensure that all forms of corruption
are eradicated. A particular focus must be on reviewing the Municipal Financial
Management Act and the relevant regulations.


The strengthening and implementation of the performance management system for
municipal officials must be prioritised, with the necessary amendment of legislation
and regulations.


The National Anti-Corruption Programme and Forum must develop a specific focus
on local government. Greater alignment and synergy of the anti-corruption tools and
instruments across national, provincial and local government is required. The
various security and law-enforcement agencies must be mobilized to better
collaborate so that they can rapidly investigate and make the appropriate
prosecutions in municipalities.




8.6    COMMUNITY-DRIVEN DEVELOPMENT


Public participation


The absence of an adequate model for public participation has become evident from
the limitations of the current ward committee model, existing modes for engagement
of traditional leadership, and other civil society partnerships. The promotion of
community self-reliance and empowerment has not been widely in evidence.


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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


A recent study on public participation by the PSC found that the existence of policies
and guidelines on public participation was uneven across national and provincial
government departments. While participation in local government is clearly regulated
by legislation, the legislative framework for public participation in the governance of
national and provincial spheres is more fragmented despite the principle of
consultation contained in the Batho Pele policy and handbook. Another study done
by the Department of Public Service and Administration in 2008, reaffirms the roles
and responsibilities of community development workers in supporting the Access
Strategy (as part of basket of access channels identified) and Developmental Local
Government.


A question arises as to whether or not these platforms are facilitating substantive
engagement in decision-making and oversight. Much engagement with stakeholders
remains poorly organised and has not always led to concrete agreements and
commitments, to real social partnership.


The effectiveness of public participation and social partnership is often limited by the
capacity of communities to organise and engage in participatory processes. The
increase in local protests suggests that there are groups that feel excluded from
participatory processes, or believe that such processes are not responsive to their
priorities and interests.


Ward committees


Ward committees have been positioned as a critical structure through which public
participation in local government is to be achieved, with ward councilors playing an
important role in linking communities to municipal processes. Community surveys
and other assessments highlight a number of problems with the functioning of the
ward committee model including a lack of clarity around the roles of the ward
committee and a lack of resources available to conduct their activities. Other
weaknesses include weak links with sector departments, difficulties experienced by
the poor in participating in ward committee activities, poor representatively, weak
election procedures, and the failure of ward councilors to regularly attend ward
committee meetings. Ward committees do not appear to be fulfilling their roles in

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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


municipal performance as envisaged by the Municipal Systems Act and functionality
has been identified as a concern by COGTA’s recent assessment of Local
Government despite a number of capacity building programmes.
Some of the typical kinds of challenges that have beset many ward committees
include:


      •    Difficulties in sustaining ward committee members’ participation and
           interest. In some cases meetings are not held or there are insufficient
           members to constitute a quorum
      •    A high turnover of ward committee members as members lose interest or
           relocate for work opportunities
      •    The chairpersons (ward councilors) not being available to attend meetings
           or failing to call meetings
      •    No clear Terms of References for committees, resulting in ad hoc
           responses to any matters that arise in the wards
      •    Poor working relationships between ward councilors and the committees,
           with ward councilors sometimes feeling threatened by the committees


Alternative Service Delivery Mechanisms


The notion of cooperative governance suggests that civil society and social partners
have a direct role to play in service delivery; that service delivery is not the sole
responsibility of government. Government’s White Paper on Municipal Services
Partnerships provides the policy framework for the use of these mechanisms and the
Municipal Systems Act provides for a municipality to adopt alternative service
delivery mechanisms if certain conditions are met and processes followed. These
mechanisms can include the use of utilities, agencies, traditional leaders,
community-based organizations, and private companies. Alternative service delivery
mechanisms have become more prevalent as government has recognized the
limitations of the state’s capacity to overcome infrastructure backlogs and deliver
services to communities, but there is still considerable scope to expand their use.


Involvement of Traditional Leadership in Governance


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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010




A policy and legal framework has also evolved to address the role of traditional
leaders in the governance system as provided for in the Constitution. This includes
the White Paper on Traditional Leadership and Governance, the Traditional
Leadership and Governance Act, the National House of Traditional Leaders Act, and
the Communal Land Rights Act. Provinces have also enacted legislation governing
traditional leadership in their province.


Some of the challenges being encountered in the new legislative dispensation on the
role of traditional leadership in relation to working together with local government
include:
       •   Lack of proper understanding of the roles of both institutions
       •   Forging of synergistic partnerships in terms of the Framework Act and
           getting all role-players to cooperate
       •   Successful reconstitution of all traditional councils in line with the new
           legislation
       •   Execution of the Capacitation Programme for all traditional leaders and
           traditional councils
       •   Inclusion of traditional leaders in ward committees
       •   Creation of a common understanding as to the status and roles of both
           municipalities and traditional institutions
       •   Provision of resources to traditional councils to be able to perform their
           customary and statutory functions and in partnerships with municipalities
       •   Mobilization of all government and non-government institutions in working
           with traditional institutions


The State of Local Government Report found that municipalities with traditional
leaders in their jurisdiction reported a poor working relationship between the
municipality and the traditional leaders. Harnessing the capacity of traditional
leaders in the local developmental effort has been identified as a necessity; and
ways of involving traditional leaders more fully in planning and governance
processes need to be found.




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                           Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


OPTIONS FOR CHANGE


Despite the enabling constitutional and legal framework, in practice there is still
much more room for improving community participation. Although the ward
committee system is crucial and has to be radically improved, it is not the only
vehicle for public participation. Public participation requires a wider set of
approaches and strategies including innovative communication systems, effective
complaint management systems and utilisation of existing community based
structures.


More importantly, a fundamental shift is required to go beyond facilitating
participation of communities in government decision-making towards community-
driven development where communities have greater control of the development
process in shaping their own futures.


Consideration has to be given to establishing a new ward governance model. A
developmental perspective of wards is required. While wards are currently only seen
as governance structures and their interaction limited to ward councillors and
municipalities, their potential as spaces for development should be recognised.


The capacity of ward committees should be strengthened. Ward committees as
enablers for facilitating and coordinating community level development should have
access to resources to undertake their developmental responsibilities. They have to
support elected ward councillors and should not be politically aligned in their work,
which has be supportive of the ward community as a whole.


Consideration should be given to augmenting municipal resources with a conditional
Community Development Grant aimed at ensuring functional ward committees
and improving community self-reliance, oversight, and control over resource
allocation. The current Community Work Programme can be further up-scaled to
form the basis for funding wages for people in wards. This can be complemented
with the Community Development Grant that can fund projects on ward level, with
greater   community   involvement       in   determining   what    projects   should       be
implemented.

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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010




In terms of relations between municipalities and wards, there should be improved
communication systems. Partnerships must be developed by the municipalities with
civil society and stakeholder relations should be well managed. Enough space
should be provided for business forums to play a complementary role on municipal
level.


Community Development workers as public servants of a special type, must work
differently to ensure that they find ways of making government programmes and
services known and more accessible to people. CDWs need to have a constructive
complementary relationship with ward committees. They will maintain working with
government and other stakeholders in order to help bridge the gap between
government and the community. They will also ensure that they strengthen
integration and coordination between services provided by government and access
to these services by communities. Community development workers will pursue the
objectives of    (i) improving    service delivery and accessibility of services, (ii)
assisting with intergovernmental coordination both between different spheres and
different line departments,(iii) facilitating   community development and stronger
interaction between government and communities and (iv) supporting participatory
democracy. The coordination of community development workers programme
should be strengthened and centralized to allow the need for multi-skilled workers to
focus on a smaller geographic area and a wide range of issues for impact while on
the other hand they forge ties and strong relationships with other community
development workers within departments whose work is restricted to their
departmental mandate and are based at national, provincial and regional level.


Improvement is required in the way Traditional Leadership cooperate with the three
spheres of government. The establishment of houses of traditional leadership as
participatory mechanisms should continue, but better participation by and
consultation with traditional leaders must be ensured. Where there are
traditional leaders, there should be consideration for ex-officio membership of the
ward committees. To enhance the participation of traditional leadership in
governance at all levels, applicable training for traditional leaders should take place.


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                               Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


Thusong Centres have the potential of facilitating the faster pace of access to
services by citizens and residents. Key government departments must actively
participate in these centres (e.g. Home Affairs, Social Development, Human
Settlements, and Labour). These centres need to become the integrated face of
government at community level. Consideration must be given to ensuring that every
government and municipal building has a Thusong service point so that a wide
network of access to information is created to supplement the fully-fledged Thusong
Centres.


8.7       INNOVATIVE MECHANISMS


There is in general a limited use of innovative mechanisms to promote cooperative
governance. More attention should be paid to communication systems, informal
processes, knowledge sharing and e-governance.


E-Governance, which make use of information technologies (such as Wide Area
Networks, the Internet, and mobile computing) can change the way government
interact with it citizens. The South African government departments and agencies
have started to make use of e-governance to improve access to some of their
services, for example:
      •   SARS has over the last two years implemented the e-filing system, which has
          significantly improved the tax filing system.

      •   A number of municipalities in the country e.g. the City of Johannesburg has
          provided for viewing and payment of traffic fines via the internet.

      •   The City of Tshwane presently sends bills via the short message services to
          the residents.

However, these initiatives are often happening in isolation and government will need
to improve its ICT infrastructure in order to optimally utilise e-governance.


Organs of state in South Africa are known for their lack of effective and accessible
knowledge management practices. A culture of holding on to information results in a
lot of duplication and waste of resources. There is no sharing of databases between

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                          Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


sectors. That is evidenced by a number of information requests by both provincial
and national government departments to local government. Municipalities are
overwhelmed by questionnaires they have to complete, many of them requesting the
same information.


Performance agreements could also play a role in encouraging more cooperative
behaviour and integrated work programmes.


Internationally the South African government is often not perceived as working
cooperatively, due to duplication of study visits and international exchanges by
different spheres and government institutions. At a community level, visits by
members of the national and provincial executives to local municipalities are often
not communicated, while even projects are sometimes committed without prior
consultation.


OPTIONS FOR CHANGE


Communications mechanisms used by government for internal communication and
between government and civil society should be improved. Government at all levels,
coordinated and facilitated by the GCIS, should employ a more efficient, effective
model of cooperative communication. This should enable government to better
communicate to communities and all stakeholders the governance system based on
input, activities, outputs and outcomes. Knowledge sharing should be encouraged
across government.


All mechanism should be considered to ensure better service delivery, including
agency arrangements and partnerships, including public/public partnerships across
government.


The national e-government programme must enable better cooperation between
national, provincial and local government and contribute to improved efficiency,
effectiveness and professionalism. An e-governance model should include that the
state is better capacitated in ICT to do work better, facilitate community access to


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                            Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


information and service delivery, and further facilitate joint work and sharing of
information within the government.


Consider the formation of the National System of Statistics whereby owners of
various data, including administrative data, can work cooperatively to establish a
comprehensive national statistics system.


Consideration should be given to introduce concepts such as an eID through which
the correct information of a citizen can be obtained through the use of the ID card
(The Department of Home Affairs has already began this process). By using this at
local government level, service delivery in South Africa can be improved radically. All
relevant government ICT role players, coordinating government agencies, civil
society and the private sector should be involved in the implementation of e-
governance. Attention should also be given to people accessing government
services using mobile phones, which are more accessible than computers.


Consideration should be given to develop protocols for entering a municipal
space. Ministers should inform sub-national spheres of government when going to
communities and when Ministers visit local areas they must inform provincial and
local government structures.


The regulation of international exchanges and visits also requires attention to
ensure that there is a focal point of coordination within government, which will attend
to both the sharing of knowledge across government, but also preventing duplication
and wastage of resources.


The sixth need is to improve public participation and increasingly shift towards
supporting community-driven development systems and processes.


The seventh area of focus is to develop innovative mechanisms including e-
governance for sharing information within government and with communities, and for
streamlining monitoring and reporting. Other mechanisms include establishing new
ways of working including joint projects and budgeting, networking, and designing
protocols and cooperation agreements.

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                              Draft Green Paper Cooperative Governance Draft 4: 2 June 2010




8.8       POLITICAL, LEGISLATIVE AND JUDICIAL IMPACT ON COOPERATIVE
          GOVERNANCE


For cooperative governance to function effectively in terms of facilitating
development, it needs to be underpinned by a political stability, maturity and
leadership.


Assessments of Local Government have revealed that party political factionalism
and polarisation of interests over the last few years, and the subsequent creation of
new political alliances and elites, have contributed to the progressive deterioration of
municipal functionality. In many distressed municipalities, a culture of corruption and
patronage has emerged with leaders often being accused over pursuing private
interests over the public good. Corrosive party politics, factionalism, and interference
in administrative appointments often contribute to the problem. Appointment
processes are corrupted as patronage leads to the installation of people who are
bound by personal loyalties, or leads to the suspension of officials who stand in the
way. In these cases, effective and accountable government is an empty concept, as
a set of `informal rules’ replaces formal rules, systems and legal prescripts.


A number of challenges can also be identified on the way the legislative branch of
government impacts on cooperative governance:
      •   The inadequacy of current municipal representation in the NCOP;

      •   A lack of coordination between the executive and legislature;

      •   A focus of parliamentary committees on sectors, but not enough attention on
          cooperative governance and how these sectors should work across spheres;

      •   Inadequate consideration by the legislature of how sector legislation impact
          on local government and powers and functions;

      •   Poor provincial legislative oversight over municipalities.

The judicial branch impacts on cooperative governance in cases where the courts
erroneously attempt to define or make policies

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                              Draft Green Paper Cooperative Governance Draft 4: 2 June 2010




OPTIONS FOR CHANGE


The relationship between state and political parties especially at a local level
must be addressed. Steps must be taken so that there is a mutually constructive
relationship and that municipalities are not micro-managed by political parties.
Political parties must ensure that the quality of their candidates in elections is
improved and that they are in good standing with communities. Political parties must
also subscribe to a common set of governance values to ensure stability in
municipalities, develop, and implement their Codes of Conduct for councillors.
Administrative officials in municipalities should not hold political office bearing
positions in political parties.


In consultation with the relevant role-players, the impact on cooperative governance
of legislative and judicial actions should be addressed. This could include issues
such as:
    •   Effective representation of Local Government in the Legislature should be
        considered;

    •   An efficient oversight role for the NCOP;

    •   The way in which the mandate of the courts impact on policy-making require
        further consideration.

    •   The challenge of how accountability in cooperative governance is defined
        and how institutions should work together cooperatively in joint frameworks
        and structures should be considered.

Better coordination may be required between Parliament and the Executive in
respect of Imbizos and community level engagements. Often the same communities
are visited where similar issues are raised or visits and oversight can be streamlined
and made more effective through sharing of reports and tracking follow-up actions.




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                             Draft Green Paper Cooperative Governance Draft 4: 2 June 2010


Finally, whilst respecting the integrity of each arm of the State there is a need to
improve cohesion within and between Political Parties, the Executive,
Legislature and Judiciary.




9.    CONCLUSION


A Green Paper is a discussion document that sets out the policy intent of
government.       It reflects on the current reality, it analyses the challenges and
constraints in the system and outlines new possibilities. A Green Paper identifies the
broad framework of what needs to be done, but is aimed at contributing to dialogue
and further discussion. This Green Paper is not purposed to be directive, conclusive
nor exhaustive.


The Minister for Cooperative Governance and Traditional Affairs will have a critical
role to support government in ensuring that that there is overall cohesion in the
workings of government and that there is full involvement and ownership on the part
of communities and civil society.


The options for change contained in this Green Paper are far reaching and requires
robust national debate and input on how best to mainstream and improve
cooperative governance.


The public from all sectors and walks of life are invited to study this Green Paper
and make comments and inputs. New ideas and innovative methods are welcome to
ensure that we work harder, faster and smarter across government and society.




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