THE TRANSFORMATION OF LOCAL GOVERNMENT SERVICE DELIVERY IN SOUTH AFRICA: THE FAILURES AND LIMITS OF LEGISLATING NEW PUBLIC MANAGEMENT by Phindile Ntliziywana LL.B Hons (UWC); LL.M (UWC); Dip. (Fribourg) A thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy (Law) in the Faculty of Law, University of the Western Cape Promoter: PROFESSOR NICO STEYTLER South African Research Chair (SARChl) Multi-Level Government, Law and Policy FACULTY OF LAW UNIVERSITY OF THE WESTERN CAPE September 2017 1 GENERAL DECLARATION I, Phindile Ntliziywana, do hereby declare that The Transformation of Local Government Service Delivery in South Africa: The Failures and Limits of Legislating New Public Management is my original work and has not been submitted for any degree or examination in any university or institution of higher learning. While I have relied on numerous sources and materials to develop the main argument presented in this thesis, all the materials and sources used have been duly and properly acknowledged. Signed…………………………………………….. Date…………………………………………………. Supervisor: Professor Nico Steytler Signature………………………………………………. Date……………………………………………………. http://etd.uwc.ac.za 2 ABSTRACT Apartheid local government failed to deliver services to the people of South Africa. Instead, it created huge spatial/settlement distortions, economic disparities, skewed urban economic logic, and massive service and infrastructure backlog. This was not the case in apartheid white local government owing to the fact that it was built, partially, on the Weberian model of bureaucracy. With the end of apartheid and the re-incorporation of previously excluded communities into the mainstream of the civil service, there was an urgent need for rapid delivery of services in order to rectify the ravages of apartheid. However, the usefulness of the Weberian model in efficiently delivering services was open to question. Its continued insistence on qualifications and practical experience would have perpetuated the exclusion of the African majority who had been denied participation in the political and economic life. The Weberian bureaucracy, therefore, stood in the way of the new democratic government’s intention to transform and deracialise the public service. As a result, the New Public Management (the NPM) was introduced as a policy in both the upper spheres and local government with the aim of ensuring rapid service delivery and deracialising public administration. However, despite the introduction of the NPM at local government, poor service delivery is still endemic in many municipalities, partly due to corruption, patronage and skills deficits. These problems manifested themselves in the ever-increasing, and often violent, service delivery protests; the withholding of rates in some affluent municipalities; the rising number of provincial interventions in terms of section 139 of the Constitution; the issuing of disclaimers, adverse and qualified audit opinions by the Auditor-General because of poor financial management; and a flurry of court cases and reports on maladministration, corruption and fraud in the procurement of goods and services. In an attempt to turn the tide at local-government level, there is now a resurgence of the Weberian model of service delivery. Since 2006, there has been a shift in thinking from a wholehearted commitment to the NPM paradigm, which promised to bring efficiency and effectiveness and rid the public service of tardiness, incompetence and time-servers. The persistent dysfunctionality of many municipalities and municipal entities has forced the government to rethink its theoretical position. The return of the Weberian model of service delivery in 2006 was occasioned by the disenchantment with the NPM paradigm which had then been in operation for five years. This study traces and analyses the competing visions of how local governments should be organised to provide basic services effectively and efficiently – how the traditional Weberian approach brought to fruition only in the dying days of apartheid has been partially replaced by the New Public Management (NPM) approach in an attempt to ensure more effective service delivery and the transformationhttp://etd.uwc.ac.za of the administrations. The study shows that after an initial 3 embrace of NPM, which produced mainly perverse results (and not effective service delivery), the pendulum has recently swung back to a Weberian approach. This thesis is advanced through a careful analysis of the relevant policies, legal frameworks, and practices. http://etd.uwc.ac.za 4 DEDICATION This dissertation is dedicated to my dearly beloved son, Lubambo. Thanks for keeping up with a busy father who was always working. May you learn from this achievement that there are no short cuts to success. Only hard work will take you there. To my late father, Mfowomzi Ntliziywana and my ailing mother, Nokuphela Ntliziywana, thank you for working tirelessly to ensure that we obtain what you could not get - education. It is a great pity that my father did not live long enough to see the fruits of his hard work. As for my mother, it was my hope back in 2009 that my Masters thesis would encourage her to regain her good health and live to see more to come. I am delighted that she has been spared to see yet another achievement. More is still to come. http://etd.uwc.ac.za 5 ACKNOWLEDGMENTS My sincere and heartfelt gratitude goes to the Dullah Omar Institute, University of the Western Cape, for securing funding from the Ford Foundation for the completion of this study. I could not have achieved this milestone without your assistance. I will forever remain thankful. I am greatly indebted to my supervisor, Prof. Nico Steytler, without whose careful guidance, astute comments, patience and kind words, it would have been difficult to complete this study. He tirelessly read the drafts and provided helpful insights which broadened my perspective on each draft commented on. His important criticism, both in terms of content and form, patience and encouragement greatly enriched and assisted in the successful completion of this study. Special thanks also go to Prof. De Visser who, in his capacity as the coordinator of what was then called Local Government Project, now Multi-level Government Initiative, nudged me along to register for a PhD. His contribution did not end there; we wrote a number of articles together which helped sharpen some of my insights toward this study. I’m equally indebted to my colleagues at UCT, Profs. Danwood Chirwa, Hugh Corder, Pierre De Vos and Rashida Manjo for providing thoughtful insights in some of my chapters. Profs. Penny Andrews and Elrena van de Spuy, Khomotso Moshikaro, Jameelah Omar, Salona Lutchman, Drs. Robert Morrel and Cathy Powell, thank you all for keeping tabs with my progress and, in so doing encouraging me to soldier on. In your different capacities, you have provided a conducive environment for the successful completion of this study. To the wonderful team of the Multi-level Government Initiative at UWC, past and present, including Drs Derek Powell, Conrad Bosire, Zemelak Ayele, Tinashe Chigwata and Douglas Singiza, Annette May, Alois Madhekeni and Valma Hendricks, I appreciate the collegiality, love and warmth. I extend my gratitude to the wonderful family at the Dullah Omar Institute, its past and present members: Trudi Fortuin, Jill Claassen, Debbie Gordon, Virginia Brookes, Nadia Sutton, Nikita Williams, Jacob Nthoiwa, Keathelia Sapto and Gladys Mirugi-Mukundi, Profs. Ebenezer Durojaye, Yonatan Fessha, Drs Aquinaldo, Chilemba, Asim, Nkatha, Mbano, and Sbongile (Sbosh), Daffin, Messi and Kristin. A special mention to my PhD buddies, Gladys Mirugi-Mukundi (UWC) and Olwethu Majola (UCT). Nakuwe Xhawulengweni, Nkosikhulule Nyembezi, ndiyabulela. To the NGAP team, thanks for the collegiality. Philile Mbatha, thanks for being my quasi-competitor, that kept me going. Charles Masango, your words of encouragement always inspire. Zimakazi, Nolundi Luwaya, you came at the tail end of the process, but made a huge contribution. I thank you, Kelly and Diane. http://etd.uwc.ac.za 6 I owe a lot and must extend my heartfelt gratitude to my son, Lubambo Ntliziywana, for understanding that Tata needed to do this, my brothers, Thozama, Thembelani, Luyolo and my sisters, Nolunyulo, Nolubabalo, Nongakuyise, Amanda for their emotional support and encouragement. Since my mother can never be thanked enough, may her dreams for her children be realized in her lifetime. I would be remiss not to mention Drs. Lucky Moni, Brian Mantlana and, most recently, Anele Gela, for setting a high standard and motivating me to pursue further studies to reach for the stars, as they did. Prof. Nongxa, you were a source of inspiration throughout my writing. Your example is worth emulating. Mnoneleli Lengoasa, Sibongile Majali, Mthuthuzeli Mkhubukeli, Monde Mketi and Mzoxolo Beko, you are hereby acknowledged for being there whenever I needed to talk. Mkhwe, Slumko Mahlasela and Mzala, Gcinuhlanga Ntsomi, your words of encouragement were a source of strength xa sukuba ndiswel’amandla. Amadodana ase Katolike, thanks for allowing me space to complete this study and motivating me along the way. Zizi, Father Qokolo, you kept on checking on me and my progress. I thank you for caring. Last but not least, MDF team, when I was in doubt you made me believe that I could do it. Xolisa Guzula and Fundiswa Mazwane, I now pass the baton to you. http://etd.uwc.ac.za 7 TABLE OF CONTENTS CHAPTER ONE: INTRODUCTION