Giving Effect to Social Justice in South Africa: Local Government and Indigent Policies

1. 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

2. 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

4. 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

5. 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

6. Approach to discussion • Background to LG indigent policies in SA • Legal and Policy Frameworks • Relevant generic features from law and policy • Concluding remarks

7. 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 effectivelyreplaced "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

8. 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

9. 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:

10. Table 2: Range and levels of services in the NIP (2006)

12. 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

13. Relevant generic features from law and policy • 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

14. 2) Clear redistributive objectives - indigent policies reviewed

15. 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

16. 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

17. 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

18. 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

19. 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

20. Thank you