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SALGA Constitutional Amendments 2012 Special National Conference 10-11 September 2012

SALGA Constitutional Amendments 2012 Special National Conference 10-11 September 2012 . Presentation Outline . Introduction and Background Process & Consultation Historical Context of SALGA

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SALGA Constitutional Amendments 2012 Special National Conference 10-11 September 2012

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  1. SALGA Constitutional Amendments 2012 Special National Conference 10-11 September 2012

  2. Presentation Outline • Introduction and Background • Process & Consultation • Historical Context of SALGA • Overview of Current Constitution, Rationale for Amendments and Key Proposed Areas for Amendment • Consideration of Proposed Amendments Part (i): Relationship between SALGA & its members Part (ii): Governance Structures Part (iii): Transitional Arrangements & Rules of Procedure • Recommendation

  3. Introduction: Process and Historical Context of SALGA (informing Constitutional Amendments)

  4. 1. Introduction • In order for LG to participate effectively in IGR system, it needs to act as a collective, through an organised LG structure. • S163 of the Constitution, recognises OLG as the legitimate voice for LG and affords it representation in key national institutions & structures. • This mandate defines SALGA as the voice and sole representative of the sphere of LG, including lobbying and advocacy on behalf of LG in relation to national policies and legislation. • SALGA was established in 1996 and was recognised by the Minister as the national organisation representing LG from January 1997. • Minister recognised national and provincial associations. • SALGA is a voluntary body representing all 9 provincial LG associations. • SALGA’s official status stems from its recognition by the Minister.

  5. 1.1 Background (Process) • The current Constitution of SALGA regulating its governance affairs was last amended and adopted by the National Conference held in 2007. • In order to optimise organised LG’s participation in key nat and prov structures, NEC of SALGA established a Political Steering Committee in 2009, which was tasked with considering, inter alia, issues pertaining to OLG requiring review. • Thereafter, the 2009 NMA discussed the key issues pertaining to OLG requiring review and resolved that provinces must make inputs on the following recommendations: • Affirmation of SALGA as a unitary structure; • Organised Local Government Act to reflect that unitary structure; and • Idea of full-time leadership at both national and provincial levels for OLG. • The NMA also resolved that a study be undertaken on how best to create a pool of experienced cllrs for deployment to assist LG and organised LG.

  6. Background (Process) • The 2010 NMA (in Commission 6) the review of OLG and preliminary proposals in this regard. • In particular, it focused on an assessment of SALGA’s gov structures, the findings thereof & initial proposals for restructuring OLG, as well as the proposed revenue enhancement model for SALGA. • The NMA accordingly resolved to: • Note the findings of the assessment of SALGA’s governance structures; and • Note the proposals on Review of OLG & amendment of the SALGA Constitution for final resolution at the 2011 National Conference. • Flowing from the findings and recommendations of the governance assessment and Provincial Conferences, the following is a consolidated position of the proposals for constitutional amendment .

  7. Background (Process) • NEC Political Steering Committee comprised of Office Bearers and Provincial Chairpersons to oversee the amendments process leading up to the National Conference (originally to be dealt with in 2011). • Constitutional amendment proposals (with explanatory document) was circulated to Provinces for the consideration of Prov Conferences. • Provincial Positions (as adopted by the Provincial Conference) were submitted to the Political Steering Committee for consideration. • Process of consolidating the inputs received culminates in the following proposals which received sufficient consensus for inclusion in this set of Proposals for consideration by Special Conference. • Where 1 or 2 provinces were in favour and the rest rejected a proposed amendment, for example, it is not included. • NB: This does not mean these proposals necessarily meet the criteria (principles) informing amendments (set out below), but merely means that it met sufficient consensus for inclusion. The thinking may have shifted.

  8. 1.2 SALGA Historical Context • As far back as 1999, SALGA has demonstrated a political preference for a unitary structure for OLG, i.e. one structure that is governed through a single Constitution. • The thinking and deliberation within SALGA has been that for OLG to be representative of LG, it needs to speak with one voice. • SALGA National Conference held from 4 to 7 April 2001 resolved, inter alia, to realign the priorities and structures of OLG to reflect the day-to-day challenges of its member municipalities and to develop OLG’s capacity to intervene and capacitate its membership. • PFMA Background • Listing of SALGA as a Schedule 3A public entity • NEC role (as accounting authority of the entity) defined by the imperatives of the PFMA corporate governance model

  9. Kwanaloga Re-integration to SALGA • SALGA NEC took decision on 15 February 2008 that “SALGA KZN be allowed to function politically in terms of the Kwanaloga constitution until the end of the current term of office of local government”. • 2011 KZN Provincial Conference held on 2-5 August at Olive Convention Centre in Durban, adopted a resolution to migrate back to SALGA and rescind the Kwanaloga Constitution with immediate effect – association is henceforth SALGA KZN. • The new PEC was elected in terms of the current SALGA Constitution (1 Chair, 3 Deputy chairpersons and 6 additional members). • Provincial Conference resolved that all governance and migration issues (integration of administration, staff, assets etc) be finalised by negotiation and agreement between Salga National and Salga KZN.

  10. 10 Constitutional Trajectory & Evolution of SALGA • The SALGA constitution was amended to give effect to the unitary org. • The following categories of members were included: • 1)Municipality est. ito Structures Act; • 2) Provincial Assoc’s • 3) Associate members • Definition of NOB narrowed down to Chair and 2 Deputy Chairs • The amendments pertained to the functioning of SALGA’s structures and did not alter provisions regarding membership to SALGA • Definition of NOB expanded to include 3 Deputy Chairpersons • The proposed amendments pertain to the functioning of SALGA’s structures and do not alter provisions regarding membership to SALGA • Significant changes on the composition, size & power distribution between various SALGA governing structures • Organised Local Government Associations were established as per the Organised Local Government Act 52 of 1997 • All municipalities who were members of the Provincial Local Government Associations were members of SALGA. • The thinking at the time was that if a municipality ceased to be a member of a Provincial Local Government Association, it ceased to be a member of SALGA. • SALGA and Provincial Local Government Associations had different respective Constitutions • SALGA Membership comprised of only Provincial Local Government Associations 2004 1997 2007 Prior to 2000 2000 2011

  11. 2. Overview of Current Constitution, Rationale for Amendments & Key Proposed Areas for Amendment

  12. 2. Overview of Current Constitution (2007) • The Constitution of SALGA assumes that the political leadership (National Conference, National Members Assembly, National Executive Committee and National Office Bearers) is responsible for policy matters and outcomes (including approval of budgets and business plans of the organisation) • While the administration (under the leadership of the Chief Executive Office as the head) is responsible for outputs and implementation of inter alia the approved budget and business plan of the organisation. • Key areas governed in Constitution, including the composition, status and meeting intervals of all governance structures, is highlighted here.

  13. Governance Structures of SALGA (i) National • National Conference • National Members Assembly • National Executive Committee (ii) Provincial • Provincial Conference • Provincial Members Assembly • Provincial Executive Committees (iii) Decision-making within SALGA Governance Structures (iv) Provisions applicable in case of Amendment of Constitution

  14. (i) National Conference • Highest decision making authority of SALGA. • Must meet within 90 days after general LG election. • NC must: • Elect members of the NEC; • Establish and review SALGA’s oversight bodies as required by law; • Consider audited financial statements, • approve SALGA’s programme of action, business plan and budget; and • review SALGA’s financial performance. • All member municipalities have 1 vote.

  15. National Members Assembly • NMA is 2nd highest decision making authority (after Nat Conference), exercising authority of SALGA between National Conferences. • Is called annually, except in year of National Conference. • Special NMA must also be called upon request of NEC or majority of members. • NMA must: • Give effect to decisions of National Conference; • Consider audited financial statements; • Adopt programme of action, business plan and budget; • Review SALGA’s financial performance; and • Consider reports of working groups and oversight bodies. • All member municipalities have 1 vote.

  16. National Executive Committee • NEC exercises authority of SALGA between National Conferences and National Members Assemblies. • It is comprised of: • Chairperson of SALGA; 3 deputy chairpersons; • 6 additional members elected directly by the National Conference. • It also consists of the Provincial Chairpersons of SALGA, who are ex officio members of the NEC, the CEO (ex officio) and any co-opted members (up to a maximum of three). • NEC shall: • Meet at least once every two months; • Exercise day-to-day executive authority; • Give effect to directions/ decisions of the National Conference and/ or National Members Assembly; • Submit reports of its activities to the National Conference or National Members Assembly; and • develop, review and adopt SALGA’s administrative policies. • The powers given by the Constitution to the SALGA NEC give effect to the PFMA.

  17. (ii) Provincial Conference • Highest decision making authority of provincial member of SALGA. • Must meet within 60 days after general LG election, but at least 30 days before National Conference. • Prov Conference must: • Elect members of the PEC; • Approve the provincial programme of action, business plan and budget; and • Establish and review oversight bodies (where applicable) as may required by law. • All member municipalities have 1 vote.

  18. Provincial Members Assembly • PMA is 2nd highest decision making authority of provincial member association (after Provincial Conference), exercising authority of the provincial member association between Provincial Conferences. • Is called annually, except in year of Provincial Conference. • Special PMA must also be called upon request of PEC or majority of members. • NMA must: • Give effect to decisions of Provincial Conference; • Adopt provincial programme of action, business plan and budget; • Consider reports of provincial working groups and oversight bodies; • And deal with any other issues emanating from the Constitution. • All member municipalities have 1 vote.

  19. Provincial Executive Committee • PEC exercises authority of provincial member association between Provincial Conferences & Provincial Members Assemblies. • It is comprised of: • Provincial Chairperson; 3 deputy chairpersons; • 6 additional members elected directly by the Provincial Conference; and • any co-opted members. • PEC shall: • Meet at least once every two months; • Exercise day-to-day executive authority of the provincial member association; • Table reports of its activities to the NEC quarterly. • Give effect to directions/ decisions of the Provincial Conference and/ or Provincial Members Assembly; • Submit reports of its activities to the Provincial Conference or Provincial Members Assembly; and • Where applicable, develop, review & adopt provincial association’s administrative policies.

  20. (iii) Decision-making within SALGA Governance Structures • Notwithstanding the provision made for voting in SALGA Governance Structures in the various clauses of the Constitution, in particular the Annexures on proceedings… • Decision-making within SALGA Governance Structures have always been underpinned by the principle of seeking and achieving CONSENSUS • Notwithstanding that, the Constitution must provide clear principles for decision-making in the event that consensus cannot be reached.

  21. (iv) Provisions applicable to Constitutional Amendments • In terms of clause 19 of the current SALGA Constitution, only the National Conference, duly convened, has the status and authority to amend the Constitution. • In so doing, clause 19 states that the Constitution may only be amended by giving 21 days written notice of the proposed amendments to members and any amendment must be approved by two-thirds of delegates entitled to vote at the National Conference. • Clause 19(2) provides that no amendment to the SALGA Constitution shall be of any force or effect until certified in terms of subsection (3) of section 101 of the Labour Relations Act 66 of 1995, as amended.

  22. 2.2 Why Amendments – Rationale • SALGA is expected to be active in various IGR forums, to provide policy direction & substantive positions on numerous issues, and to articulate & defend all LG interests. • Effective participation in the IGR system requires substantial & representative political leadership if SALGA is to assert itself as voice of LG. • In last decade, numerous additional lGR forums/ structures have emerged. • The legitimacy of SALGA as the sole representative voice of LG, and all its categories, has sometimes been called into question. • In particular, the challenges of effective participation in the NCOP require special attention.

  23. Rationale for Amendments • In order to fulfil its constitutional mandate, amendments to the Constitution of SALGA is critical at this juncture of its journey. • A strong, representative association being widely representative of the interests of its members is an absolute necessity to provide the necessary leadership and support to municipalities. • Indeed, if all the dynamics, developments and challenges facing LG are to be negotiated it is critical for SALGA to have a strong Constitution and governance architecture in place; one that is geared towards ensuring that it is able to represent, promote and protect the interests of LG.

  24. Rationale for Amendments • Consequently, maximising our participation in the NCOP and ensuring effective representation in our governance structures is of paramount importance if the we is to respond to diverse challenges facing the various categories / types of municipalities. • In the main, the proposed amendments are focused on: • enhancing the inclusivity and legitimacy of decision-making; • Improving Parliamentary representation of OLG; and • Improving the governance arrangements of SALGA. • Ultimate aim is to improve the representivity, legitimacy, discipline and rules of procedure of SALGA. • All proposed amendments which follow should meet these principles.

  25. 2.3 Key proposals for Amendment (i) SALGA’s relationship with its members • Role and Mandate (revised) • Members’ Compact (new) • Code of Conduct (revised) • Membership Fees and Levies • Participation and voting (revised article - combined) (ii) Governance Structures • National Members Assembly • National Executive Committee • Provincial Executive Committees • Working Groups (new) (iii) Transitional arrangements and Rules of Procedure • Transitional Arrangements (new) • Rules of Procedure (revised)

  26. 3. CONSIDERATION OF PROPOSED CONSTITUTIONAL AMENDMENTS

  27. 3.1 Consideration of Amendments Part (i): SALGA’s relationship with its members This section deals with the following proposed amendments: • Role and Mandate (revised) • Members’ Compact (new) • Code of Conduct (revised) • Membership Fees and Levies • Participation and voting (revised article - combined)

  28. Role and Mandate • The current clause 4 lists the objectives of the organisation. • Proposal to rename the section and include the ff objectives as the Role & Mandate article (in addition to the objectives already listed in the current Constitution): • Develop common approaches for LG as a distinct sphere of govt; • Enhance cooperation, mutual assistance and sharing of resources among municipalities; • Find solutions for problems relating to LG generally; • To increase knowledge sharing and improve the communications capacity as well as vertical and horizontal connectivity of OLG and municipalities; • To ensure that South African LG plays a critical role in furthering Africa’s development at regional, continental and international levels; • Ensure the full participation of women in OLG, including striving for parity (50%) of representation in its governance structures.

  29. Members’ Compact Problem Statement: • There is currently no provision in Constitution dealing with rights and obligations of members. • There is a need to spell out clearly the rights & obligations of members (rationale). New article (5) is proposed as follows: • Members shall, subject to this Constitution, be entitled to: • Participate in the various activities and programmes of SALGA; • Have equal access to information, data and documentation on LG matters; • Have equal access to the activities and decisions of SALGA. • Members shall abide by the Constitution and resolutions of its constitutional decision-making structures, and shall comply with membership commitments in terms hereof. • Disputes between SALGA and any member or members must be declared in writing and set out the grounds of the dispute and proposed resolutions. • Dispute resolution procedures are provided for in the Rules of Procedure annexed to this Constitution.

  30. Code of Conduct Problem Statement: • The current provisions on discipline regulate in the main the expulsion or suspension of members if “it fails to pay membership fees, fines or levies and remains in arrears for a period of 30 days from the date of demand in writing by the head of the administration”. • These extreme measures (suspension or expulsion) are not likely to be invoked. • The effect is that members who are currently not in good standing have full participation rights in SALGA structures and events. It cannot be the case that members who refuse or are long in arrears with their membership levies, for example, receive the same benefits as members who are in good standing. • Also, in light of the insertion of an article on Members’ Compact, it is here proposed that some provision is made for non-fulfillment of member obligations and adherence to the Constitution, which is necessary to maintain discipline and ensure the long-term sustainability and effectiveness of the Association.

  31. Code of Conduct Rationale for Amendment: • There is a need for comprehensive approach to dealing with discipline in the organisation, incl. defining what constitutes breaches or offences. Proposed that the Constitution provides for: • The Code of Conduct shall be applicable to all members. • A separate Code of Ethics shall apply to elected NEC and PEC members as set out in Annexure… • The NEC or a PEC shall establish ad hoc Disciplinary Committees, as and when the need arises, for the purpose of enforcing the Code of Conduct and disciplining members.

  32. Membership Fees and Levies Problem Statement: • Current Constitution provides for payment of levies by members, as determined by National Conference from time to time – no clarity or guiding principles which inform such a determination. • 5 Year interval between Conferences also renders any changes in the intervening period impossible. Therefore proposed to amend the existing provisions as follows: • The NEC shall, in consultation with PECs, formulate a policy to regulate the determination of membership fees. • The NEC shall further determine the fees due by each category of member on a multi-year basis, which shall be reviewed annually. • The formula in terms of which such levies are calculated shall be circulated to all members by no later than the last day of December of the year prior to which the new or reviewed levies will be applicable. • Membership fees and levies determined be due and payable by members on 1 April to 31 July and shall be payable to SALGA at its national office. • A member who fails to pay levies shall remain a member with lesser rights, surrender voting rights and right to election to executive posts, until all due membership levies have been paid.

  33. Participation and Voting Problem Statement: • The current article 10 entitled ‘votes of members’ deals in a minimalist fashion with voting and to an even lesser extent with participation. Rationale for Amendment: • Participation and voting must be collapsed into one article to deal comprehensively with participation in governance structures and voting therein. • Different categories of municipality, and their contribution to SALGA, renders the one-vote principle ‘unfair’. • Need a formula that ensures proportionality and acknowledges the diversity and representivity of the organisation’s members.

  34. 3.2 Consideration of Amendments Part (ii): Governance Structures of SALGA • National Members Assembly • National Executive Committee • National Working Committee (Sub-structure of NEC) • Provincial Executive Committees • Working Groups (Advisory)

  35. 3.2.1 National Members Assembly Problem Statement: • The NMA is convened to review SALGA’s financial performance and adopt SALGA’s programme of action, business plan and budget. • Currently it meets annually and much of the energy of the organisation is spent on preparation for NMAs and Conferences, with little if any time for implementation of decisions adopted by these governance structures. • The cycle is such that once an NMA or Conference is over, six months later planning for the next NMA or Conference takes priority. • The result is that the organisation is constantly reporting on work in progress or begun and not executed decisions... because it has had no time to implement decisions.

  36. National Members Assembly Rationale for and proposed Amendments: • Bearing in mind the extended NEC meeting, a NMA annually is not necessary or feasible. • Given the PEC representation of members and annual PMAs, regular mandates and review by members is critical at provincial level. • Risk that SALGA could continue on inappropriate path for up to 3 yrs is also mitigated by annual PMAs and provision for an extended NECin the intervening years. • It is proposed that: • SALGA shall, at least once in between National Conferences, but no later than 30 months after the last National Conference, hold a NMA.

  37. National Members Assembly Proposed Amendments cont.: • Proposed further that the current article, which provides that the Chairperson shall call an NMA if there are special circumstances, be amended to provide: that the NEC shall call a National Members Assembly: • at the written request of the majority of provincial associations containing the reasons for such a request and setting out the matters to be discussed at the proposed meeting; or • if it resolves that there shall be special circumstances which require an NMA. • Moreover, the following provision is to be inserted to give greater meaning and value to the NMA: • Adopt positions on key policy & legislative matters impacting on LG, for action by NEC.

  38. 3.2.2 National Executive Committee Problem Statement/ Rationale for Amendment: • OLG has also not been able to participate effectively in the NCOP (the primary IGR platform) mainly due to the status and availability of NEC members. • The recent LG Week debate was in fact the first time in the 15-yr history of SALGA and the NCOP that all 10 OLG seats were filled (and that was due entirely to our presence at the LG Week). • The commitment of NCOP that the LG Week will be annual and the outcomes thereof will be driven through Select Committees, presents a major opportunity for LG in the oversight process and requires SALGA’s full participation. • To ensure the optimisation of the participation of OLG in IGR structures and Parliament and indeed confirm SALGA as the sole representative and leader of LG, there is a need for additional NEC members whose sole purpose will be representation in the NCOP and provincial legislatures.

  39. Designation of Head and Office Bearers President and Presidency • SALGA has 10 Chairpersons – one national and nine provincial chairs – they have, for eg., been referred to interchangeably (incorrectly citing the provincial Chair as Chair of SALGA). • The stature of SALGA as a unitary and national representative body of municipalities requires that we clearly distinguish the provincial chairpersons and office bearers from the national head and office bearers. • Proposed that the national Chairperson be designated as President; Deputy Chairs as Deputy Presidents; and the Office Bearers collectively as The Presidency. • Would elevate the stature of SALGA and bring our designation in line with the recognised national, regional and international designation – SALGA as party to continental and global bodies such as UCLGA, UCLG and CLGF would favour such a designation.

  40. NEC Composition The NEC is proposed to be comprised of: • The President; • 3 Deputy Presidents; • 6 additional members (directly elected); • 9 additional members, who shall have no vote and shall be appointed by the NEC in accordance with the Organised LG Act for purposes of Organised LG’s representation in the NCOP (Annex C sets out nomination procedures); • 9 provincial chairpersons, who are ex officio; • The Head of Administration (ex officio), who shall have no vote; and • Co-opted members (maximum of 3).

  41. Secretary-General and Treasurer-General? Role of political Secretary-General and Treasurer General? • In 2001 to 2004, SALGA had these two political portfolios. With advent of PFMA, it was discontinued and deemed inappropriate in law to have a Treasurer General and Secretary since the Accounting Officer (CEO) is responsible for the administration, preparing reports for the NEC etc. Also has a CFO reporting to Accounting Officer. • The NEC is the accounting authority of SALGA, it cannot ito the PFMA designate the tasks of the accounting officer (CEO) to itself in form of Treasurer General and Secretary = duplication. • The PFMA also requires that there must be an audit committee independent of the NEC. • In other organisations, the Secretary-General is appointed official or is a political person responsible for the administrative affairs of the organisation because it does not have an accounting officer or head of administration. • It may thus pose serious challenges (apart from the inherent conflict) for SALGA to return to that scenario given the legislative imperatives and practice.

  42. Presidency (Office Bearers) Rationale and Proposed Amendment: • As a principle, the office bearers must reflect the diversity of membership of the Association. • It is proposed that the following be inserted in a revision of the current articles: • There shall be a Presidentand three Deputy Presidents; • Collectively they constitute the Presidency; • The three Deputy Presidents must be comprised of a representative from each category of municipality, and • The Presidencycollectively must be from different provinces to ensure representivity. In other words, no two members of the Presidency may be from the same province.

  43. Role of Presidency (Office Bearers) Presidency collectively shall be responsible for the execution of the ff. functions: • Oversee the implementation of decisions of the NC, NMA and the NEC by all SALGA governance structures and functionaries; • Present reports on the state and performance of the governance structures of the organisation; • Ensure the implementation and management of the Members’ Compact as provided in this Constitution; • Present reports on enforcement of the Code of Conduct by relevant SALGA structures; • Ensure effective relationship building with members & resolution of disputes between SALGA and members; • Politically responsible for the deployment of SALGA representatives to IGR and other structures, as may be prescribed in the Governance Framework; • Politically oversee the development & execution of the SALGA Strategic Plan for term of NEC; • Politically responsible for communication between the organisation, its members and stakeholders; • Be politically responsible for overseeing fundraising/ sponsorship plans for SALGA events; and • Perform such other functions as delegated by NEC in accordance with delegations framework.

  44. NEC Quorum & meeting intervals Frequency of NEC Meetings: • Meeting Requirements: • The NEC shall meet at least once every three (3) months. • An extended NEC, comprising of all NEC and PEC members, shall be convened annually, except in the year that the National Conference or National Members Assembly is scheduled. Quorum – NEC Meetings: • Meeting threshold: • 50% + 1.

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