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Dr. Oliver FuoPostdoctoral Fellow and Part-time lecturer in Local Government
Studies, NWU, Faculty of Law (Potchefstroom Campus)
Paper Presented at the Conference on Local Government Law, Port Elizabeth, South Africa, 5-6 November 2014 – Theme: Local Government Law: A Multifarious Beast
Giving Effect to Social Justice in South Africa: Local Government and Indigent Policies
Background to discussion and LLD thesis Pursuit of social justice as a constitutional commitment Firmly rooted in the vision of transformative
constitutionalism Local government is co-responsible for constitutional
objectives What is social justice???? Human rights as a mechanism for pursuing social justice More holistic approach that focuses on benchmarks In relation to indigent policies – lessons gathered from
Fraser’s affirmative policy reform proposals
Benchmarks1
Benchmark 2
Benchmark 3
Benchmark 4
Benchmark 5
Benchmark 6
Benchmark 7
Benchmark 8
Benchmark 9
Benchmark 10
Theories & perspectives on SJ
Redistribute resources through measures e.g. policies
Promote public participation
Address structural causes of inequalities
Build capacity
Guarantee and fulfil human rights
Promote sustainable development
Address stigma associated with welfare beneficiaries
Avoid privatizing basic services
Share responsibility with all spheres of government
Promote group solidarity
Shookner X
US National Committee for Responsible Philanthropy
X
University of Berkeley 6th Annual SJ Symposium
X X X X X
UN Social Justice in an Open World (2006)
X X X
Rawls X X X X
Sen and Nussbaum
X X X
Fraser X X X X X X
Background cont.
Above benchmarks not exhaustive Benchmarks implementable through various governance
instruments Government instrumentation Policies e.g. indigent policies, Plans such IDPs By-laws Public-private partnerships etc Purpose of paper
Critically reflect on the relevance and potential of local government indigent policies in contributing towards the pursuit of social justice in South Africa
Background cont. 7 municipal indigent policies considered:• Tshwane Metropolitan Municipality (TMM) • Johannesburg Metropolitan Municipality (JMM)• Mangaung Metropolitan Municipality (MMM)• Cape Town Metropolitan Municipality• Tswelopele Local Municipality• Tlokwe Local Municipality and • Tswaing Local Municipality Above municipalities reflect the urban, semi-urban and
rural matrix of municipalities in the country
Approach to discussion
Background to LG indigent policies in SA Legal and Policy Frameworks Relevant generic features from law and
policy Concluding remarks
Background to indigent policies in SA 18 September 2000, President Mbeki announced the intention
of government to provide free basic services such as water, electricity and sanitation to impoverished households
2001-2005, national government adopted several sector-specific policies and guidelines in the area of water, electricity and sanitation
2005, Draft Municipal Indigent Policy Framework was designed to consolidate fragmented basic services policies
2006, National Framework for Municipal Indigent Policies (NIP) The 2006 NIP effectively replaced "former indigent policies and
free basic services policies" Aim of 2006 NIP - provide a safety net for those excluded from
access to basic services by virtue of poverty in order facilitate their productive and healthy engagement in society
Background to indigent policies in SA Overall objective: ensure that all indigents have access to
prescribed levels of basic water supply, sanitation, basic energy supply and refuse removal services
NIP defines an indigent to include anyone who does not have access to the following services: sufficient water; basic sanitation; refuse removal in denser settlements; environmental health; basic energy; health care; housing; food and clothing
Definition is commendable and suggests that individuals can only exit the indigent bracket if they have access to above range of services
Legal and Policy Framework The Constitution expressly and implicitly guarantees a range of
socio-economic rights - right of access to sufficient water, sanitation and electricity
Constitution obliges government to adopt "legislative and other measures" such as policies to give effect to socio-economic rights
Government is required to prioritise and attend to the needs of those in desperate situations - CC jurisprudence in Grootboom Case
Developmental mandate of local government requires that municipalities prioritise and meet the needs of local communities
Legislation grants Minister powers to set essential minimum or national standards for the provision of free services to impoverished households in situations where framework legislation does not clearly define such standards - s 108(1) of the Systems Act
Table below shows basic level of free services guaranteed by NIP to indigent households:
Range of services
Service levels
Basic water supply facility
The infrastructure required to supply 25 litres of potable water per person per day supplied within 200 metres of a household and with a minimum flow of 10 litres per minute (in the case of communal points) or 6000 litres of potable water supplied per formal connection per month (in the case of a yard or house connections).
Basic water supply service
The provision of a basic water supply facility, the sustainable operation of the facility (available for at least 350 days per year and not interrupted for more than 48 consecutive hours per incident) and the communication of good water use, hygiene and related practices.
Basic energy service
The provision of sufficient energy to allow for lighting, access to media and cooking - fixed at 50kWh per household per month.
Table 2: Range and levels of services in the NIP (2006)
Range of services Service levelsBasic sanitation facility
The infrastructure needed to provide a sanitation facility, which is safe, reliable, private, protected from the weather and ventilated, keeps smells to the minimum, is easy to keep clean, minimises the risks of the spread of sanitation-related diseases by facilitating the appropriate treatment and/or removal of human waste and wastewater in an environmentally sound manner.
Basic sanitation service
The provision of basic sanitation facility which is easily accessible to a household, the sustainable operation of the facility, including the safe removal of human waste and waste water from the premises where this is appropriate and necessary, and the communication of good sanitation, hygiene and related practices.
Basic refuse removal service
The disposal of refuse from a property where housing densities permit this or the removal of refuse from each property located within a municipality and the disposal of this waste in a landfill site. Refuse should be disposed in a manner that ensures the health of the community is maintained and no diseases are propagated, or pests allowed to breed due to refuse which is not properly removed and disposed of.
Housing assistance
Ensure that sufficient land is identified within the municipal boundary, in appropriate locations, for all residents in the municipality and that the necessary planning is undertaken to ensure that this land can be properly developed. Further, ensure that funding available from the province for housing is properly allocated to assist the indigent with access to serviced plots and assistance with providing "top structure" through the "people's housing process." In the case of inner city locations, to ensure that the indigent can gain access to some form of shelter.
Legal and Policy Framework cont.
The NIP obliges municipalities to adopt and implement municipal indigent policies that are suited to local contexts and capable of meeting the basic needs of indigent households
The NIP acknowledges the inadequate nature of national service levels in relation to water and electricity and subjects them to periodic revision and increase by national government
Several studies and expert opinion show that the basic levels of water and electricity are inadequate to meet real needs of indigent households
However, the NIP is flexible and there is space for improvement at local level
Relevant generic features from law and policy
1. Indigent policies guarantee and seek to fulfill HR - socio-economic rights
Give effect to express and implied constitutional rights Legislation requires that municipalities transform indigent
policies to indigent by-laws In absence of by-laws, indigent policies can be judicially
enforced based on: An interpretation of the positive duties imposed by the
Constitution to “take reasonable legislative and other measures” – constitutional delegation of power to the legislature and executive
Where an indigent policy is transformed into a by-law, the indigent by-law (original legislation) should be preferred – especially where there is a conflict
Indigent policies/by-laws can therefore be used to hold municipalities accountable – enhances social justice potential
Municipality Water Electricity
Tshwane Metropolitan Municipality (TMM)
25 litres per person per day or 6000 litres per household
100kWh per household per month
Johannesburg Metropolitan Municipality (JMM)
Based on level of poverty and household size – poverty index
Based on level of poverty and household size – poverty index
Mangaung Metropolitan Municipality (MMM)
25 litres per person per day or 6000 litres per household
50kWh of electricity per month
Cape Town Metropolitan Municipality
25 litres per person per day or 6000 litres per household
50kWh of electricity per month
Tswelopele Local Municipality 25 litres per person per day or 6000 litres per household
50kWh of electricity per month
Tlokwe City Council 25 litres per person per day or 6 kl litres per household
50kWh of electricity per month
Tswaing Local Municipality 25 litres per person per day or 6000 litres per household
50kWh per household per month
2) Clear redistributive objectives - indigent policies reviewed
3. Obligation regarding public participation
Apart from guaranteeing the right to public participation in public governance processes, government must create conditions and structures needed to sustain genuine public deliberations
Extensive legal obligation on municipalities to facilitate public participation in local governance processes
Guidelines for the Implementation of Municipal Indigent Policies (2006) oblige municipalities to promote public participation in the indigent policy-making process
Ward committees, councillors and advisory committees should serve as channels for public participation
However, meaningful public participation remains a challenge at the local level – dysfunctional ward committees
The jurisprudence of the CC on meaningful engagement could be useful
4) Provision for intergovernmental partnership
Pursuit of social justice requires partnership between the various levels of government
Constitutional obligations regarding co-operative government NIP "recognises the need for intergovernmental co-operative
government in the process of dealing with indigents" and identifies various key players at national and provincial level
Infrastructure required for providing potable water and electricity managed by the Presidential Infrastructure Co-ordinating Commission – Infrastructure Development Act 23 of 2014
Without necessary infrastructure, some households cannot access basic services e.g. electricity
The practical commitment towards intergovernmental cooperation is sometimes questionable
5) Avoid privatisation of basic services Municipalities may engage external mechanisms for the provision
of services - see s 76(a)(i)-(iii) and (b) of the Systems Act. View that public-private partnerships is akin to privatisation of
some basic services Dugard - municipal distributors of water and electricity
increasingly function as “corporatised entities according to business plans”.
Main problem with this commercialised model of providing basic services is that, private market mechanisms distribute basic social services based on the willingness and ability of consumers to pay
Approach has led to intensification of cost-recovery measures such as prepaid meters
Therefore, tensions arise from the need to balance the welfare objectives of indigent policies and the long term financial sustainability of municipal services
Concluding remarks Social justice cannot be achieved when people lack access to
the basic needs of life. This means that, where government policies fail to address the actual needs of people living in poverty, they reinforce socio-economic hardships and fail to create the conditions needed to sustain participatory parity
Despite the degree of flexibility enjoyed by municipalities in setting the range and levels of free basic services that should be provided to indigents, most municipalities lack the financial resources to go above the basic standards set by the NIP
This review shows that differences in the levels of free basic water and electricity services provided by different municipal indigent policies are minimal. This suggests that the flexibility mechanism in the NIP is underutilised even by municipalities with arguably more resources. This defeats the welfare objectives of the NIP at the local level
Concluding remarks cont.
The indigent policies reviewed do not contain any specific strategy on how to address the stigma usually associated with welfare beneficiaries
Conclusion: Local government indigent policies are relevant and have the potential to contribute towards the pursuit of social justice generally because they meet some of the generic benchmarks in Table 1. Not all generic benchmarks can be addressed in one instrument e.g.
Limited emphasis on capacity building towards self-sufficiency Limited emphasis on group solidarity No direct provision to address structural causes of inequalities Little emphasis on sustainable development
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