PEOPLE’S PARTICIPATION IN GOVERNANCE, JUDICIAL INTERPRATETION AND THE CONCEPT OF INVENTED SPACES IN SOUTH AFRICA

By Yasin Maoni

1          INTRODUCTION

Governance worldwide is evolving around the best accepted values referred to as principles of good governance. One amongst those values of good governance is the requirement that governance must be people oriented and must take into account the needs of the people. This is couched in used terms of people’s participation, public participation or community participation as is used in other circles. South Africa is not an exception in the evolution of the governance concepts. In that regard, the core values of good governance, including the principle of people’s participation, have been incorporated in the domestic framework. In essence, the South African governance model is both representative as well as participatory system od democracy.

This paper examines the concept of people’s participation in the South African framework, particularly with regard to the jurisprudence developing from the courts in applying the concept, as well as the new related concept of invented spaces. In that regard, the paper in the first part elaborates on the concept of people’s participation and explains its significance in governance and its place in the legal and policy framework. The second part discusses how the courts have interpreted and applied the provisions of the law dealing with people’s participation in practice, with special reference to the propounded reasonableness principle. The last part examines the modern concept of invented spaces as it relates to the jurisprudence of peoples participation in the South African context. The paper will wind up with concluding remarks on the general discourse.

2.         PEOPLE’S PARTICIPATION CONCEPT, SIGNIFICANCE AND ITS LEGAL     AND   POLICY FRAMEWORK.

2.1 The concept of people’s participation

Participation generally means to take part in certain activities. In the context of development and as a concept of governance, it connotes the direct involvement of all the people in the decision making process on matters that are likely to affect their lives. Nonvakaliso Mfenguza states that people’s participation, also termed as community participation, involves the role played by communities and stakeholders in policy making and implementation processes.[1] In essence, it is a practice obtaining in governance that ensures that people of the community take part in the decision making processes, and, if necessary on implementation. The participation is in matters or affairs that have an impact on the people’s life. It is one of the ideals of good governance. There are different levels or ways in which people’s participation can be achieved. The court has stated that the foremost is that the processes must include access to information and the facilitation of learning and understanding in order to achieve meaningful involvement of ordinary citizens.[2] Other means or levels of participation include petitioning, consultation and other means of contribution.[3]

2.2 Significance of people’s participation

The practice of involving the people in decision making is emphasized in modern governance as it as it brings in advantages. The benefits of involving the people in decision making processes according to Buccus, Henson, Hicks and Piper, are enumerated.[4] They include the fact that participatory approach, as opposed to external expert approach, generates social change through the social learning and internalisation that is involved. It is also considered to strengthen democracy and improves governance as decision making is better informed and more responsive to local needs.[5] In explaining the significance of people’s participation as it relates to local government, Mfenguza states the advantage of community participation as being that it makes people understand how the government works and the constraints under which it functions.[6] The constitutional Court outlined the benefits of participatory governance to include provision of vitality to functioning of representative democracy, it encourages citizens to be actively involved in public affairs, it makes citizens identify themselves with government institutions and becomes familiar with the law and policies as they are being made, it enhances dignity of the participants as it allows their voice to be heard and taken into account, it promotes spirit of democratic and pluralistic  which produces laws and policies widely accepted in practice, strengthens legitimacy of the laws and policies, and, lastly, acts as a counterweight for secret lobbying and influence peddling which works to the benefit of the disempowered.[7]

2.3 Peoples participation in South African legal and policy framework.

The Constitution and legislation has strictly instructed governance structures in South Africa to follow participatory approach in decision making processes, especially in policy and legislative processes. In the context of this discussion, only the constitution requirements of public participation are explained. The Constitution has required people’s participation in the legislative processes. The National Assembly and the National Council of Provinces (NCOP) have been instructed to facilitate public involvement in legislative and other processes, including those of committees.[8] This requirement of public involvement in legislative and other processes is also instructed at provincial legislature.[9]  The Constitution has also emphasized the participation of the people in decision making process in public administration. Amongst the constitutional principles laid down to govern public administration is the principle that people’s needs must be responded to and the public must be encouraged to participate in policy making.[10] At local government level people’s participation seem to be considered fundamental. Amongst the objectives of local government is to encourage the involvement of the community and community organisations in the matters of local government.[11] In addition, the Constitution has strictly provided that no by-laws may be passed by a municipal council unless the proposed by-law has been published for public comment.[12] This underlines the emphasis of people’s participation in decision making at local level.

In terms of policy, the principle of people’s participation finds its way in the Batho Pele White paper on Service Delivery.[13] The first of the eight principles under the policy is the requirement of consultation with users of public services. This brings in involvement of the people in making decisions regarding public services. In the local government context, people’s participation finds its way in policy through the White paper on Local Government 1998. The policy hinges on peoples participation which is emphasized in the definition of developmental local government. In the White Paper, developmental local government is defined as government committed to working with the citizens and groups within the community to find sustainable ways to meet their social, economic and material needs.[14] People’s participation, therefore, finds its thread in both legal and policy frameworks of South Africa.

3          JUDICIAL APPLICATION OF THE CONCEPT OF PEOPLE’S       PARTICIPATION

3.1 General application of the requirement of people’s participation

The pace setting decisions on people’s participation in the South African jurisprudence are the Doctors For life international V speaker of the National Assembly and others,[15] Matatiele Municipality and others V President of the Republic of South Africa and others[16], and Merafong Demarcation Forum and others v President of the Republic of South Africa and others.[17] In the Doctors for Life case, the organisation Doctors for Life International brought an action in the Constitutional court challenging the manner in which Parliament passed four health related legislation. The legislation in question are The Choice on Termination of Pregnancies Amendment Act (CTPA),[18] the Sterilization Amendment Act (SAA) ,[19] the Traditional Health Practitioner’s Act (THPA),[20] and the Dental Technicians Act (DTA).[21] The contention was that in the process of enacting these statutes the requirements of public involvement as required by sections 72(1) (a) and 118 (1) (a) of the constitution were not complied with by the National Council of Provinces (NCOP) and the provincial legislature. As a matter of fact, it was seen in evidence that public hearings were promised to be be organised in the provinces in respect of the CTPA and THPA which were not done by NCOP and many of the provinces as promised. The court held the conduct of NCOP to promise public hearing and fail to honour the promise to be unreasonable and consequently not in compliance with the requirement of peoples participation under section 72 (1) (a) of the constitution.[22] This was so as the public were denied a chance to better contribution in the proposed law as the nature of the proposed law demanded. With regard to the challenge in relation to the Dental technician Amendment Bill, the court said although NCOP did not do the public hearings as required by the people, the court did not find the failure unreasonable. The conclusion was that requirements of section 72(1) (a) on citizens involvement were satisfied. The court therefore found the passing of the two earlier bills unconstitutional for failure to provide adequate and reasonable participatory room to the community.

In the Matatiele case, the Constitutional challenge was on the Twelfth Amendment and the Repeal Act. The applicants contend, as one of the grounds,  that the Twelfth Amendment was unconstitutional in that it effectively re-demarcated Matatiele Municipality and removed it from KwaZulu-Natal into the Eastern Cape without compliance with section 118(1) (a) of the Constitution which dictates that people be involved in legislative processes. The court found that the Eastern Cape Provincial legislature held public hearings while the Kwazulu-Natal provincial legislature did not hold the public hearing. On the reason of such failure to hold public hearings, it was found to be a violation of the constitutional requirement of people’s involvement under section 118(1) (a) . As such, the Twelfth Amendment and Repeal Act was adjudged invalid.

In the Merafong Demarcation Forum case, The applicants asked the Court to declare that the Gauteng Provincial Legislature had failed to comply with its obligation in terms of section 118 of the Constitution to facilitate public involvement in its processes leading up to the approval of the Twelfth Amendment Bill by the NCOP. Van der Westhuizen J (writing for a majority of nine justices) found that the Legislature had fulfilled its duty to facilitate public involvement as required by section 118(1)(a) of the Constitution.  The Legislature took reasonable measures to solicit public comment.  The submissions made by the public were taken into account.  Though the Portfolio Committee failed to report to the community when it changed its position, this possibly disrespectful conduct did not equal unconstitutional conduct. 

All these decisions show how the Constitutional court has considered the provisions of public participation as available in the Constitution. Judicial interpretation clearly indicates that no legislation will be valid unless reasonable steps are taken by the legislative authority to facilitate public involvement in the legislative process.  In explaining the obligation to facilitate public involvement the court recognises the fact that the legislative bodies have broad discretion on how best to fulfill it so long as they act reasonably.[23] This brings in the idea of reasonableness.

3.2 Reasonableness test in determining compliance with requirements of people’s participation.

In deciding whether people’s involvement requirements as set out by law and policy have been met, the court indicated that it will have to be decided on a case by case basis. For instance, the court specifically stated that to determine whether parliament ( which also applies to any organ to which duty of facilitating public involvement is imposed) has complied with the duty to facilitate public involvement in a particular case, the court will consider what parliament has done in that particular case.[24] The court went o to say that the main question will be whether what parliament has done is reasonable in all circumstances.[25] Whether the efforts taken by the legislative body or any organ to facilitate citizens’ involvement is reasonable is the yardstick of determining whether the legal requirements of people’s participation have been complied with. The corollary is that if the efforts or conduct are found to be unreasonable, the policy, decision or legislation thereof is declared invalid for failure to facilitate people’s involvement as demanded by law.  This is the test set by judicial decisions in application of the requirement to facilitate people’s participation. The court has not left the requirement of reasonableness open ended, but has gone further to clarify what factors are to be considered in determining the reasonableness of the action or efforts to facilitate public involvement.  In the scenario of the obligation of parliament to facilitate public involvement in legislative process, which was the case in the Doctors for Life decision, the court propose consideration of factors such as the rules, if any, that have been adopted by parliament to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently. In essence all measures and efforts put in place must be appropriate to the circumstances of each case. The true position of the court on the test of reasonableness and appropriateness of action in respect of people’s participation is in the statement of Ngcobo J who stated;

“In determining whether what Parliament has done is reasonable, this court will pay respect to what Parliament has assessed as being the appropriate method. In determining the appropriate level of scrutiny of Parliament’s duty to facilitate public involvement, the Court must balance, on the one hand, the need to respect parliamentary institutional autonomy, and on the other, the right of the public to participate in public affairs.”[26]

(Emphasis added)

Propriety of efforts or action in facilitating people’s participation is one important factor which involves balancing the need of parliamentary processes and the need of people’s involvement. A good example of this balancing is in the case of Beja[27] where the need to provide toilets by the municipality was balanced with the need for reasonable engagement with due consideration of the people’s right to dignity. The court specifically stated that the legal obligation to reasonably engage the local community in matter relating to the provision of access to adequate housing which includes reasonable access to toilet facilities in order to treat residents “with respect and care for their dignity “was not taken into account when the city decided to install the unenclosed toilets.[28] The relevant policy was held invalid as a result. Reasonableness has therefore been the guiding test in the jurisprudence of accessing whether the dictates of the law with regard to people’s participation have been met.

4          THE CONCEPT OF INVENTED SPACES IN PEOPLES PARTICIPATION

4.1 The concept

As people’s participation is being encouraged in governance cycles worldwide, studies and other initiative are being taken in an effort to improve participatory governance. One issue which has been under systematic study is that of platforms or media of people’s participation. In ordinary and most of the cases these platforms of people’s participation are created by state or state structures to involve the people in decision making processes. In the South African local government context, for instance, the Systems Act provides that community participation must take place through political structures established in terms of the structures Act.[29] These are structures either established by statute or are to be established by the municipalities. They are thus classified as state provided spaces or platforms and in some cases they prove ineffective. Studies done in Cacada district and Mpumalanga’s Ehlanzeni District indicate that state provided spaces for people’s participation have not worked effectively as envisaged.[30] This creates the need for forums created by the people themselves. The forums created by the people themselves are referred to as invented spaces as they are innovative result of the community practice. These are in contrast with forums and mechanisms created by the state which are referred to as invited spaces as the communities are just invited to participate. The concept of invented spaces has been lately put forward as a better and effective tool in entrenching people’s participation. Literature on the subject, and in support of use of invented spaces, argue that participation ought to extend beyond making active use of invitations to participate, to autonomous forms of action through which citizens create their own opportunities and terms.[31]

Invented spaces in the sense of platforms of community participation are those platforms created outside of the state, sometimes by groups of citizens, social movements or other civil-society formations, with the intention of enabling people to come together to discuss, debate, and resist plans and decisions emerging from the government or, alternatively, from segment of the community.[32]

4.2 Invented spaces in the jurisprudence of people’s participation.

The concept of people’s participation is aimed at ensuring effective peoples participation. It therefore fits within the jurisprudence of people’s participation as is obtaining in the South African jurisdiction.  In the Matatiele decision, the court outlined the significance of people’s participation.[33] Amongst the listed factors were that it encourages citizens to be actively involved in public affairs, it enhances the civic dignity of those who participate by enabling their voice to be heard and taken into account, and that it acts as a counter weight to secret lobbying. It has been seen above that at times the forums created by legislation and state actors prove to be ineffective. In such cases these three mentioned benefits of peoples participation cannot be realisd, Firstly, if the mechanisms of community participation are ineffective, it means the community will feel that their voice and their concerns are not being heard or taken into account as envisaged by the listed advantage. This in turn may lead to apathy from the mechanisms established by state and in the long run poor participation. With such ineffectiveness, the state forums can no longer be used as a substitute for secret lobbying as they would no longer be considered as meaningful avenues of engagement. The use of invited spaces therefore strengthens these three benefits of people’s participation within the jurisprudence as it vitalizes the people desire, satisfaction and meaningful impact. It is this relationship that links the jurisprudence of participatory governance with the concept of invented spaces. The use of invented spaces entrenches the practice of participatory governance on effective and acceptable levels to both the governing and the governed. This relates well with the emphasis placed on people’s participation by the Constitution, legislation and judicial decision.

5          CONCLUSION

It has been seen in the paper that people’s participation is a governance concept of wider significance which is one of the qualities of good governance. The concept of people’s participation has not only been adopted in the South African framework, but it has highly been emphasised as a precondition, especially in legislative processes. The courts have unequivocally applied this requirement and have developed a reasonableness test in the process which is used to determine whether the requirements of people’s participation are duly complied with. New concept of invented spaces has been developed and is encouraged in the people’s participation jurisprudence as it entrenches the participatory tenets of government.

BIBLIOGRAPHY

Legal Instruments and regulations

Constitution of the Republic of South Africa Act No 108 of 1996

 Choice on Termination of Pregnancies Amendment Act No 34 of 2004.

Dental Technicians Act No 24 of 2004

Local Government: Municipal Systems Act No 32 of 2000.

Sterilization Amendment Act No 3 0f 2005

Traditional Health Practitioner’s Act No 35 of 2004.

Case Law

Beja and Other v Premier of the Western Cape and Others [2011]3 All SA 401(WCC); 2011(10) BCLR 1077 (WCC)

Doctors For life International V speaker of the National Assembly and others 2006 (12) BCLR 1399(CC).

Matatiele Municipality and others V President of the Republic of South Africa and others 2007 (1) BCLR 47(CC).

Merafong Demarcation Forum and others v President of the Republic of South Africa and others CCT41/07 [2008] ZACC 10.

Books and Journal Articles

Buccus I, Hemson D, Hicks J, and Piper L Public Participation and Local Governance Research Report by the Centre for Public Participation (CPP) 2007 University of KwaZulu-Natal.

Kambala PM, Gorgens T, Van Donk M Advancing Networking Spaces: Making a Case for Communities of Practice to Deepen Public Participation in  Putting Participation At the Heart of development//Putting development at the heart of Participation: A Civil Society Perspective On Local Governance in South Africa 2012 Good Governance Learning network Cape Town.

Ngamlana N and Mathoho M Citizen Led Spaces For Participation in Local Governance: Lessons from the Good Governance Surveys in Putting Participation At the Heart of development//Putting development at the heart of Participation: A Civil Society Perspective On Local Governance in South Africa 2012 Good Governance Learning network Cape Town.

Steytler N and De Visser J Local Government Law of South Africa 2011 LexisNexis Durban

Theses

Mfenguza N Analysis of Community Participation in Local Government Development Planning with Reference to King Sabata Dalindyebo Local Municipality Thesis 2007 Nelson Mandela Metropolitan Municipality University.

Policy Documents

Batho Pele “People First” White Paper on transforming Public Service Delivery 1999

White Paper o

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[1] Mfenguza N Analysis of Community Participation in Local Government Development Planning with Reference to King Sabata Dalindyebo Local Municipality Thesis 2007 22.

[2] Ngcobo J in Doctors For life International V speaker of the National Assembly and others 2006 (12) BCLR 1399(CC) Para 131.

[3]  Steytler N and De Visser J Local Government Law of South Africa 2011 6-9.

[4] Buccus, Hemson, Hicks and Piper Public participation and Local Governance Research Report by the Centre for Public Participation (CPP) 2007 6.

[5] Buccus, Hemson, Hicks and Piper  7

[6] Mfenguza 2007 23.

[7] Matatiele Municipality and others V President of the Republic of South Africa and others 2007 4 Para 59. See also Steytler and De Visser 2011 6-

[8] Section 59 (1) (a) and section 72 (1) (a) of the Constitution of the Republic of South Africa 1996.

[9] Section 118 (1) (a) of the Constitution.

[10] Section 195 (1) (e) of the Constitution.

[11] Section 152 (1) (e) of the Constitution.

[12] Section 160 (4) (b) of the constitution.

[13] Batho Pele “People First” White Paper on Transforming Public Service Delivery 1997.

[14] Section B1 of the White Paper of Local Government 1998.

[15] Doctors For life International V speaker of the National Assembly and others 2006 (12) BCLR 1399(CC).

[16] Matatiele Municipality and others V President of the Republic of South Africa and others 2007 (1) BCLR 47(CC).

[17] Merafong Demarcation Forum and others v President of the Republic of South Africa and others CCT41/07 [2008] ZACC 10.

[18] Act no 34 of 2004.

[19] Act No 3 0f 2005.

[20] Act No 35 of 2004.

[21] Act No 24 of 2004.

[22] Doctors for Life Para 195.

[23] Doctors for Life Para 145.

[24] Doctors forLife Para 146.

[25] Para 146.

[26] Doctors for Life Para 146.

[27] Beja and Other v Premier of the Western Cape and Others [2011]3 All SA 401(WCC); 2011(10) BCLR 1077 (WCC).

[28] Beja Case Para 146

[29] Section 17 of the Local Government: Municipal Systems Act No 32 of 2000.

[30] Ngamlana and Mathoho Citizen Led Spaces for Participation in Local Governance: Lessons from Good Governance Surveys 33.

[31] Ngamlana and Mathoho 33.

[32] Kambala, Gorgens and Van Donk Advancing Networked spaces: making a case for communities of Practice to Deepen Public Participation in Putting participation at the Heart of development //Putting development at the Heart of Participation: A Civil Society Perspective on Local Governance in South Africa 2012 73.

[33] Matatiele Judgment Para 59.

TRACING ACCOUNTABILITY IN SOUTH AFRICAN GOVERNANCE FRAMEWORK

By Yasin Maoni

1   INTRODUCTION

South Africa is a constitutional democratic state founded on values of multiparty system of government that ensure accountability, responsiveness and openness.[1] It is a state that is meant to operate on the principles of good governance. According to International Fund for Agricultural Development (IFAD), governance is the manner in which power is exercised in the management of the country’s economic and social resources for development.[2] Good governance as a concept exists when certain elements are attained in the governance model. The main elements include accountability, transparency, and the rule of law, people’s participation and responsiveness.[3] These are the elements the South African constitutional democracy aspires to achieve. One of the elements of good governance, as mentioned, is accountability and is the subject of this paper.

There is an assertion that South Africa has a highly regulated system of public accountability that governs the public service and local administration. This paper argues along that assertion; that the South African legal and regulatory framework does provide for better accountability. In that line of argument, the paper explores the concept of accountability and indicates its existence in the South African framework. The second part of the paper considers the definition of accountability where as the third part discusses the necessary elements for an accountability relationship. In the fourth part, the paper discusses in some detail how accountability has been provided for in South African constitution, legislation and policy framework. The last part of the paper discusses, in brief, the obstacles of accountability in South Africa.

2.  DEFINITION AND CONCEPT OF ACCOUNTABILITY

Accountability, like any other term or concept, has been defined differently by different scholars and organisations from differing perspectives. The English Advanced Learner’s Dictionary [4]states that to be accountable is to be responsible for your decisions or actions and expected to explain them when you are asked to do so., particularly to somebody. Peruzzotti states that a government is accountable when there are institutional conditions that forces public officials to inform about, justify, and to be eventually sanctioned for their decisions.[5] According to Bovens, accountability is a social relationship in which an actor feels an obligation to explain or justify his or her conduct to some significant other.[6] In this relationship there are two variables; the accountor or actor who could be an individual or agency, and the significant other also known as the accounting forum or accountee, which may be a specific person, agency or entity, including the general public. Thus, the concept of accountability brings in a relationship which entails an obligation to a person, body or entity to be responsible, to account, and to justify actions to other person, entities agencies or to the general public.

3   KEY ELEMENTS OF ACCOUNTABILITY

Accountability as a concept to exist, there are certain factors that must exist. This, of course, can be discerned from the definition of accountability as above given. There are different approaches and perspectives scholars have used to understand the elements of accountability as a social concept. For the purposes of this paper, elements of accountability are considered in the perspective of Enrique Perruzzotti, Staffan I Lindberg and Mark Bovens.

3.1 Enrique Perrruzzotti

In explaining the concept of accountability, Perruzzotti states that the notion of accountability involves a specific form of exchange between two autonomous actors characterised by three properties. First, it entails some control by someone who is not part of the body being held accountable. Secondly, it is basically an interaction of two ends; those demanding accountability and those being held accountable.  Lastly, it is a structured asymmetry of power in favour of those demanding accountability.[7] This, however, does not make a clear explanation of the necessary elements of accountability, though it attempts to mention variables.

3.2 Staffan I Lindberg

Lindberg, in explaining the concept of accountability, states that all literature on the subject agree to the view that any form of accountability must have the following characteristic or elements;

i. An agent or institution giving account;

ii. An area, responsibility, authority or domain which is the subject of accountability;

iii. An agent or institution to whom the account is to be given known as the principal;

iv. The right of the principal to require the accounting agent to inform, explain or justify decisions with regard to responsibility or authority;

v. The right of the principal to sanction the accounting agency if it fails to inform, explain of justify its decisions as required.[8]

These, according to Lindberg, are the necessary elements of accountability or an accountability relationship.

3.3 Mark Bovens

Boven provides a better explanation of the elements of accountability which, to a larger extent, is in agreement with Lindberg. Boven states that at least three elements must exist. First the actor or accounting agency must feel obliged to inform or account to the significant other or to the forum his or its conduct by providing data on performance, outcomes or procedures. Secondly, the information or account must lead to a debate or interrogative phase where the conduct, information or data is questioned by the forum or significant other. Thirdly, the significant other or forum forms a judgment of the actor’s conduct, approves or annuls the account, condemns the behavior or denounces the decision. This may be in a form of a sanction of the accountor. Thus, in general, those are the three elements of accountability.[9]

Bovens has further expounded the elements in relation to public accountability, as opposed to accountability per se. To qualify as public accountability, he sates that the accountability relationship must have five elements; (i) public accessibility of the account or that it must be open ; (ii) an explanation or justification of the conduct; (ii) the explanation has to be directed at a specific forum and must not be random; (iv) there must be an obligation to provide that account or information; and (v) there must be possibility of debate, judgment or imposition of a sanction, whether formal or informal.[10]

From the three perspectives of elements of accountability it can be seen that certain elements are generally necessary for accountability to exist. These, in short are public accessible information, explanations and justifications, specific person or entity to explain to or justify, an obligation to so provide information, explain and justify, and room for debate, judgment or sanction. These are what can be surmised as elements of public accountability. The discussion herein, since the accountability in question is that of public officers, will be based on the said five elements. The part below discusses accountability and its elements in South African law and regulations.

4 MANIFESTATIONS OF THE VALUES OF ACCOUNTABILITY IN SOUTH AFRICAN LAW AND POLICY

As stated above, the South African Constitution envisages a democratic system that is accountable, among other values. But as the assertion is that the legal and regulatory framework does adequately provide for accountability, the question is how and where has it been so provided? This part of the paper answers that question by tracing the position of accountability and its elements in the South African legal and policy framework. This will be considered particularly in terms of the Constitution, legislation and policy or guidelines.

4.1 Accountability in the Constitution

The Constitution of South Africa, 1996[11] lay down the foundation of accountability in administration. First, the Constitution provides that South Africa is a state founded on values one of which is to ensure accountability, responsiveness and openness.[12] Secondly, the Constitution provides for principles of cooperative government in chapter 3 and amongst the principles to be adhered to by all spheres of government is to provide for effective, transparent, accountable and coherent government.[13] Thus apart from being among the founding principles of the state of South Africa, accountability also features within the principles of co-operative government.

Accountability, also considered in terms of its elements as discussed above, manifest itself in the Constitution in other provisions. The Constitution provides for political accountability of the president and cabinet to parliament. The national assembly chooses the president, provides a national forum for public consideration of issues as well as scrutinises and oversees executive action.[14]  Related to that is the fact that the President, deputy president and all ministers, who all constitutes the cabinet, are accountable collectively and individually to parliament for exercise of their powers and the performance of their functions.[15] In that regard, members of the cabinet are obliged to provide parliament with full and regular reports concerning matters under their control.[16] In addition to the above, the national assembly has the power to remove the cabinet as a whole or in exclusion of the president by vote of no confidence. [17]

The provisions above manifest accountability with its elements as discussed above in the national political setup.  First, there is a two way relationship between the president and the cabinet, on the one hand, and parliament or national assembly on the other hand. The president and cabinet are obliged to account and report to parliament or national assembly. Parliament or national assembly forms a forum of consideration of action and conduct, can make judgment or resolutions, and can sanction by way of no confidence or otherwise. The elements of accountability do therefore exist in the constitutional accountability of the president and cabinet to the legislature.  A similar scenario is obtaining in case of provincial government.  The provincial legislature is commanded to provide for accountability of executive organs.[18] It appoints the premier who heads the executive council, and the premier and the executive council are accountable, collectively and individually, to the provincial legislature for exercise of their powers and performance of their functions.[19] Similarly, the premier and the executive council must provide full and regular reports to the provincial legislature, [20]and may be removed by vote of no confidence by the provincial legislature.[21]

In the local government sphere, the Constitution has also made some provisions with regard to accountability but with a different format. In that respect the Constitution only provides that the objectives of local government includes providing for democratic and accountable government.[22]The difference in nature of provision for the accountability of the executive to the legislature at local government is the fact that both executive and legislative functions of local government are vested in the councils.

In addition to the above specific constitutional requirements, the legislative as well as executive organs of all spheres of government are made accountable to the electorate through regular elections and are obliged to provide information and account to the public. They are commanded to be transparent as well as answerable through public participation and communication mechanism that are available in the legal and policy framework.

The Constitution also provides for administrative accountability in a number of instances. Among them is through the establishment of institutions supporting constitutional democracy under chapter 9. These include the office of the Auditor General of South Africa (AGSA) whose function is to audit and report on the accounts, financial statements, and financial management of all national state departments, administration agencies as well as municipalities.[23] This gives an obligation to all those institutions to report and account as well as explain and justify their decisions in utilizing financial resources. Further, the accounting organs are judged based on the report, information or account provided, which may be followed with necessary sanctions. Apart from the AGSA, the Constitution also establishes the Public Service Commission (PSC) as an independent body with power to promote the values set out in the Constitution in relation to public service, to investigate, monitor and evaluate the organisation and administration, among others, of the public service.[24]  The operations and mandate of the commission, the principles enunciated under section 195 of the Constitution which are to be promoted by the commission , and the code of conduct developed thereafter, among other things, make public officers responsible and accountable for their actions.

Lastly, the Constitution has provided for better accountability in financial matters of all state departments and organs by strictly requiring all budgets from all spheres of government to promote transparency, accountability and effective management.[25]Additionally, the Constitution provides for the establishment of the national treasury which is vested with the responsibility of enforcing those prescribed measures of transparency, accountability and expenditure controls in all spheres of government.[26] Thus, these are some of the instances the Constitution has provided for accountability as discussed above. As will be seen in the proceeding discussion, legislation and policy providing for accountability has emanated from the constitutional framework. 

4.2 Accountability in legislation and policy.

Legislation and policy have also provided for accountability in South Africa putting to practice the dictates of the Constitution. The foremost is the Public Audit Act which was enacted under the authorization of section 188(4) of the Constitution.[27] The Act provides for the same functions of the AGSA under section 4(1) as already provided in the Constitution and as above discussed. Secondly, accountability is provided in legislation through the Public Finance Management Act.[28] This act applies to national and provincial spheres of government and expressly states that its objective is to secure transparency, accountability and sound management of the revenue, expenditure and assets of relevant institutions.[29] The Act has many provisions requiring accountability, including requiring sound budgeting processes and reporting thereof under chapter 4, as well as providing for disciplinary and criminal proceeding for misconducts and offences, respectively, under chapter 10. It provides for accounting standards, procedures for holding public officers answerable, and necessary sanctions in case of contravention. The sanctions include legal proceeding which is a legal accountability to the responsible officers.

Further from the above, accountability has been provided through the Prevention and Combating of Corrupt Activities Act (PCCAA).[30] This act also brings in legal accountability to individuals who misuse their positions in office for personal gains. This applies nationally. At the local; level there are also a number of legislation providing for accountability. The Municipal Systems Act has provided for performance management, for monitoring and review of performance as well as a reporting system.[31] The Municipal Finance Management Act has also made strict provisions for accountability such as budgeting processes and their requirements in chapter 4, reporting obligations under chapter 8, financial reporting and auditing requirements under chapter 12, and many similar provisions. These provisions provide for the elements of accountability, including possible sanctions if the perpetrator is found wrong. A number of regulations have been made under these Acts, including policies which have been guiding government action and strategy.

5   OBSTACLES OF ACCOUNTABILITY

The existence of stringent regulations of accountability in the framework does not go without challenges. Key amongst the challenges is the lack of political will which is linked to fraud and corruption, poor communication and accountability relationship with the community, and lack of capacity. These challenges are briefly discussed below in that order.

5.1 Lack of political will linked to fraud and corruption

The main challenge of achieving better accountability has been lack of political will. This is linked to fraud and corruption because the system has ably provided for mechanisms of reporting and monitoring. In most of the cases the institutions, bodies or organs established by the system manage to report the abuse, misuse or waste or fruitless use of resources but no meaningful remedial or sanctioning action is taken. This is particularly on the reason that the implicated individuals have connection to some political leaders. This defeats the whole system and rationale behind the mechanisms of accountability. In some cases no action is at all taken in reported misconducts. For instance, although the MFMA provides liability to the municipal manager who is referred to as the accounting officer if he deliberately or grossly negligently fails to take reasonable steps to prevent unauthorized, irregular, fruitless and wasteful expenditure, [32]and despite audit reports indicating huge amounts of unauthorized and irregular expenditure, action against municipal managers is rarely taken. Similar instances exist in cases of violation of then PFMA at national and provincial level and also in relation to PCCAA. That poses a big challenge to holding the responsible individuals to account and defeats the progress in achieving accountability as envisaged by the law and policy.

5.2 Poor communication and accountability relationship with the community.

Apart from the above, poor communication and accountability relationship with the community is another challenge to achieving sound accountability. This is particularly so in the national and provincial spheres of government The provincial government does not have its own robust revenue raising powers as it relies for most of its programmes on grants from nationally raised revenue.  This minimizes the public diligence and watchfulness and consequently diminishes accountability relationship between the government and the governed.  This is contrary to what is obtaining at the local level where the community feels the urge to hold their local governments accountable in lieu of the rates and charges they pay. This creates a strong downward accountability relationship between the community and the government and is conducive for better accountability. At national level the scenario is no better than the provincial level. The accountability relationship is not direct and strong as in the local government case. As to accountability to the community, the most strong accountability tool available is the regular elections that take place on 5 year intervals. The accountability is also perceived to be through their representatives in national assembly.

5.3 Lack of capacity

Another persistent problem that is making effective accountability not to be achieved is lack of capacity of relevant individuals and officials. At national level, since adopting democratic politics, there has been a challenge to balance the need of skilled personnel and the available human resource. This has been so due to the fact that most of the coloured and black nationals were marginalised during the apartheid era and the after effects are still having an impact despite efforts to balance the situation. At provincial level there is a similar problem to the extent that a study undertaken by the Department of Cooperative Governance indicated that most personnel do not possess the required skill and knowledge to fulfill their mandate.[33] At local government as well the problem of poor human resources exists and the turnaround strategy paper[34] and the Good Governance Learning Network submission of 2007 also admit the challenge.[35] The accounting and reporting standards provided for in the framework needs special skills to be properly implemented, which skills have not been matching with the requirements. However, specific deliberate efforts are being taken, such as high minimum qualification prescription for senior managers. This has been a challenge in attaining accountability as envisaged by the framework.

6   CONCLUSION

The South African is founded on principles of a democratic state based on principles of good governance one which is to provide for an accountable and responsive government. Accountability requires answerability of public officers for their decisions and has highly been provided for in the Constitution and legislation as well as policy. There is both political accountability, administrative accountability and legal accountability within the system. Better reporting systems have been provided in use of financial resources of the state as well as processes and remedies. That, however, is with challenges in implementation which includes lack of political will linked to corrupt conduct, poor communication with communities and lack of capacity among others.

BIBLIOGRAPHY

Legal Instruments and regulations

Constitution of the Republic of South Africa Act No 108 of 1996

Public Audit Act No 25 of 2004.

 Public Finance Management Act No 1 of 1999.

Local Government: Municipal Finance Management Act no 56 of 2003.

Local Government: Municipal Systems Act No 32 of 2000.

Prevention and Combating of Corrupt Activities Act No 12 of 2004.

Books and Journal articles

Bovens M Public Accountability in Oxford Handbook of Public Management and Public Accountability 2005 Oxford

Hornby A S Oxford Advanced Lerner’s Dictionary of Current English 8th Edition Oxford University Press Oxford 2010.

International Fund for Agriculture and Development Good Governance: An overview Executive Board Document No 35370 for 67^th session 1999 http://www.ifad.org/gbdocs/eb/67/e/EB-99-67-INF-4.pdf Accessed 05/09/2012)

Lindberg SI Accountability: The Core Concepts and its Subtypes in Africa Power & Politics Working paper No 1 2009 Overseas Development Institute London. http://www.dfid.gov.uk/r4d/PDF/Outputs/APPP/APPP-WP1.pdf (accessed 05/09/2012)

Peruzzotti E The Working of Social Accountability: Context and Conditions Paper prepared for the workshop “Generating Genuine Demand with Social Accountability Mechanisms Paris 2007

www.sasanet.org/documents/Curriculum/.../E%20Peruzzotti.doc (accessed o4/09/2012)

Policy and Discussion documents

African National Congress Legislative and Governance Subcommittee Provincial and Local Government Review Discussion Paper 2010 http://www.anc.org.za/docs/discus/2010/summitz.pdf (accessed 11/09/2012).

Department of Cooperative Governance & Traditional Affairs Local Government Turnaround Strategy 2009 http://www.info.gov.za/view/DownloadFileAction?id=118277 (accessed 11/09/2012).

[1]

 Good Governance Learning Network Submission to the Department of Provincial and Local Government on the Review of the White Paper on Local Government 2007 www.ggln.org.za/publications/submissions/...submission.../file (accessed 11/09/2012)

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[1] Section 1(d) Of the Constitution of the Republic of South Africa 1996.

[2] International Fund for Agriculture and Development Good Governance: An overview Executive Board Document No 35370 for 67^th session 1999 1.

[3] IFAD Good Governance: an Overview  3

[4] Hornby A S Oxford Advanced Lerner’s Dictionary of Current English 8th Edition 2010.

[5] Peruzzotti E The Working of Social Accountability: Context and Conditions Paper prepared for the workshop “Generating Genuine Demand with Social Accountability Mechanisms Paris 2007 3.

[6] Bovens M Public Accountability in Oxford Handbook of Public Management and Public Accountability 2005 184.

[7]  Perruzzotti E Working of Social Accountability 2007 3.

[8] Lindberg SI Accountability: The Core Concepts and its Subtypes in Africa Power & Politics Working paper No 1 2009 8.

[9] Bovens M Public Accountability 2005 185.

[10] Bovens M Public Accountability 2005 185.

[11] Constitution of the Republic of South Africa1996.

[12] Section 1(d) of the Constitution.

[13] Section 41(1) (c) of the Constitution.

[14] Section 42 (3) of the Constitution.

[15] Section 92 (2) of the Constitution.

[16] Section 92(3) (b) of the Constitution.

[17] Section 102 of the Constitution.

[18] Section 114(2) (a) of the Constitution.

[19] Section 133(2) of the Constitution.

[20] Section 133(3) (b) of the Constitution.

[21] Section 141 of the Constitution.

[22] Section 152(10 (a) of the Constitution.

[23] Section 188(1) of the Constitution.

[24] Section 196 of the Constitution.

[25] Section 215(1) of the Constitution.

[26] Section 216 of the Constitution.

[27] Public Audit Act No 25 of 2004.

[28] Act No 1 of 1999.

[29] Section 2 0f the Public Finance Management act No 1 of 1999.

[30] No 12 of 2004.

[31] Chapter 6 of the Local Government: Municipal Systems Act No 32 of 2000.

[32] Section 173 (1) (a) (iii) of MFMA.

[33] African National Congress  Legislative and Governance Subcommittee Provincial and Local Government Review Discussion Paper 2010 12.

[34] Department of Cooperative Governance & Traditional Affairs Local Government Turnaround Strategy 2009 18.

[35] Good Governance Learning Network Submission to the Department Of Provincial and Local Government on the Review of the White Paper on Local Government 2007 14.