Devolution of powers to local government in terms of the Children’s Act Dpt. of Social Development Johannesburg, 30 July 2012 Prof. Jaap de Visser Multi-level Government Initiative University of the Western Cape Cape Town

This presentation

• • • Local government in the 1996 Constitution Rules for assignment Assignment provisions of the Children’s Act

Short history

• • Before 1994: racist institution – grossly inequitable service delivery – ‘own management for own areas’ • wealthy town centres / suburbs • townships as dormitories for black labour subordinate institution – – existed by virtue of provincial statutes exercised only those powers that were delegated to them – strong provincial control

Transition 1994-2000

• • • negotiations resulted in strong recognition of LG in Interim Constitution final 1996 Constitution even stronger recognition of local government – protects financial and functional powers of municipalities – charges municipalities with ‘developmental mandate’ suite of legislation followed to shape LG system, completed only in 2005 – (Municipal Structures Act, Systems Act, MFMA, Property Rates Act etc.)

Constitutional context

• • Constitution itself (not a law or regulation) gives powers to local government – Schedule 4B and Schedule 5B – (Fiscal powers -rates + levies) National and provincial govts. may add further powers to local government – assignment

• • • • • • •

Municipal powers over Schedule 4B and 5B

exist regardless nat/prov govt /monitoring) of what national or provincial law says entail power to make and implement by-laws nat/prov govt. may not remove that authority may regulate (minimum standards municipality can defend its powers in court – E.g. Constitutional Court struck down Development Facilitation Act for violating ‘municipal planning’ provincial govt. may intervene if municipality fails Metro’s have all 4B/5B powers - Municipal Structures Act divides between district and local municipalities

Most relevant constitutional competences

• • Municipal Health Services (4B) (‘health surveillance of premises’) Child Care Facilities (4B) • • • but also: Municipal parks and recreation (5B) Control of undertakings that sell liquor Beaches and amusement facilities to the public (5B) • In addition: synergies with Developmental Local Government mandate, constitutional objects of local government, IDP framework etc.

• • • • • • •

Municipal powers over Child Care Facilities

exists regardless of what national or provincial law says municipality make and implement by-laws on child care facilities nat/prov govt. may not remove authority wrt child care facilities national/provincial govt. may regulate municipalities’ activities in child care facilities but only minimum standards / monitoring municipality may defend its authority over child care facilities in court provincial govt. may intervene if municipality fails to perform wrt to child care facilities Metro’s have authority wrt child care facilities - Structures Act allocates child care facilities to local municipalities

Challenges

• what does ‘Child care facilities’ actually mean ? • how can national government regulate municipal exercise of ‘Child care facilities’?

– minimum standards / monitoring provisions?

What do the words in Schedule 4B/5B actually mean?

• • • Where does ‘municipal planning’ end ‘provincial planning’ begin ?

and What does ‘child care facilities’ entail?

What is meaning of ‘municipal health services’?

• • Importance: if something falls under ‘child care facilities’: every metropolitan and local municipality has authority ito Constitution already national govt. may regulate

How to solve uncertainty over meaning of ‘child care facilities’?

1. define in a law – E.g. National Health Act defines ‘municipal health services’, National Land Transport Act defines ‘municipal public transport’ etc.

2. define it informally (guidelines, manuals etc.) 3. wait for conflict and let the courts decide 4. rely on cooperation

Assignment – adding powers to the constitutional powers of local government

Assignment

• • assignment to one municipality assignment to all municipalities • both national and provincial governments may assign (parts of) their authority

What Constitution says about assignment

• • • S 44/104 – Parliament or provincial legislature may assign legislative powers to LG – – Act of Parliament / provincial law ‘ legislative assignment’ S 99/126 – National Minister or duty to implement Act to LG – – Agreement, proclamation by President/Premier ‘ executive assignment’ MEC may assign S 156(4) – sometimes Minister/MEC must assign…

Context for anxiety around assignment

• • • Municipalities raise their own revenue • E.g. > 85% of operating costs self-funded Real and perceived concerns re ‘ unfunded mandates ’ – functions outside of 4B / 5B that were never properly assigned (e.g. museums, libraries) – underfunding of new mandates (e.g. free basic services)

What metro’s spend on unfunded mandates

2008/09 2009/10 R3,819 billion R4,194 billion (Source: Fiscal and Financial Commission 2012) Rules for transferring functions have become unpredictable

Children’s rights and division of authority - Constitutional Court

• • Consequences of

Blue Moonlight

judgment – should JHB find alternative accommodation for destitute evictees?

– JHB: ‘not our function’, housing is in Sch 4 A – CC: Bill of Rights determines that Jhb is responsible If children’s rights are being violated – court may find that municipality has a responsibility, not dependent on explicit constitutional power / assignment

General laws that regulate assignment

• • • • Constitution Municipal Systems Act Intergovernmental Fiscal Relations Act Financial and Fiscal Commissions Act Two types of assignment: – – by law (parliament does it) by agreement (Minister/MEC does it)

Assign through Act of Parliament/prov law to municipality / LG

• • • • • Min/MEC must consult (Budget Forum) request assessment of FFC – ‘agenda’ prescribed (finances, capacity, assets, staff etc.) consult Min of CoGTA, Min of Finance, SALGA – ‘agenda’ prescribed Accompany Bill by Memorandum on finances and capacity Can also be done by provincial legislation

When MEC / Minister assigns to a specific municipality

• • • • • • • consult Budget Forum approval of the relevant Treasury request and consider assessment of FFC submit memorandum, with assignment to Min of CoGTA and NT By agreement President / Premier proclaims take appropriate steps to ensure funding and capacity-building if duty falls outside of 4B/5B

Assignment ito Children’s Act

• • • • Ss 88, 102, 225 Children’s Act – assignment: registration of partial care facilities programmes and drop-in centres , ECD assignment agreement from HoD to MM , in form of HoD must first do needs-assessment Minimum content of agreement prescribed

Challenges / difficulties

• • • ‘child care facilities’ in Sch 4B – mean ?

– what does it e.g. if it includes ‘drop-in centres’  authority, no assignment necessary LG already has Constitution says the MEC (not HoD) assigns to the municipality (not to MM) – municipal council must approve budget – Children’s Act provisions unconstitutional Constitution says that assignment is effected by Proclamation

‘proliferation’ of assignment rules

Assignment ito Children’s Act now regulated by: 1. Constitution; 2. Municipal Systems Act; 3. Intergovernmental Fiscal Relations Framework Act; 4. Financial and Fiscal Commission Act; 5. Children’s Act; and 6. Regulations in terms of the Children’s Act.

How to align? Some requirements overlap , others contradict .

To consider

• • • define ‘Child Care Facilities’ so that it is clear what is already with LG and what needs to be assigned align assignment framework with other assignment rules asymmetry is key to success – differentiate between municipalities

• • assignment procedures in local government laws are complex but not impossible asymmetry and incremental devolution is key to success – differentiate between municipalities

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