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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