Public Discourse: CoCT attempts to undermine Public Participation

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Public Discourse: CoCT attempts to undermine Public Participation

Published letter by Paul Hoffman SC (Cape Times – 11th June, 2013)

Glenn Ashton’s letter referred to by Paul Hoffman SC (Cape Times – 10th June, 2013)

Letter to the Mayor : Attempted Repeal of the City’s Public Participation Policy adopted on 30 March

‘Active Tense’

Cape Times, Tuesday, 11th June, 2013

Paul Hoffman SC

The synchronicity in publishing Glenn Ashton’s letter (“Alliance between city and developers undermines rights”) and Len Swimmer’s open letter re land use planning (both on 10 June) has not gone

Both complain that there is a lack of accountability and a failure to accommodate public participation in our nascent democratic order. Neither gentleman cites the origin of these aspirational features of our new dispensation. I refer, of course, to section 195(1) of the Constitution, a measure in our supreme law that is all too often honoured in the breach by those in authority in the country at all levels of government. In that section the values and principles governing the public administration are set out in great detail. Among them are the words “People’s needs must be responded to, and the public must be encouraged to participate in policy-making” and “Public administration must be accountable”. The Constitutional Court has embraced and
expatiated on both principles, the former in the Doctors for Life case over abortion rights and the latter, accountability, in the case brought by the Rail Commuters Action Group against Metrorail to
improve the safety and security of rail commuters in Cape Town.

It is comforting to see activists invoking the rights of the public; knowing and claiming rights is of the essence of constitutional democracy. Converting passive subjects of a bygone authoritarian order into active citizens of a constitutional democracy is a basic project of the new SA. “The condition upon which God hath given liberty to man is eternal vigilance” was said by JP Curran, a Irish orator, in 1790. The condition upon which CODESA has given freedom to the new SA also entails eternal vigilance.


Institute for Accountability in Southern Africa

‘Alliance between city and developers undermines rights’

Cape Times, Monday, 10th June, 2013

Glenn Ashton, Noordhoek

A NUMBER of events lead me to a firm conclusion that environmental planning and developmental analysis in this city is under unprecedented attack through collusion between political and commercial

The first event is the out-of-the-blue initiative by a consortium of developers to initiate a massive exurb on the northern periphery of Cape Town.

The Wescape initiative has been roundly condemned by all well informed independent planning academics and experts. It is doubly ironic that the consortium made this proposal on the virtual eve of
Cape Town becoming the Design Capital of the World in 2014 -nothing could be as far removed from good design as this pretentious pustule of poor planning.

The second is the increasing cosiness between the DA-led city and province and the Western Cape Property Development Forum (WCPDF).

The proposed “red carpet” to smooth planning proposals, while ostensibly sensible, is simultaneously a massive threat to proper integrated planning, as evinced above. The stated goal of the WCPDF is
to become “a body that represents development that is recognised by authorities and which will ultimately become a statutory recognised body”. Its tentacles already appear to control too many
administrative levers of power.

To even consider having a forum, guided, run and controlled by property developers as a statutory, recognised body should send chills down our collective backs. This is centralised planning
epitomised. The reality behind party political funding should ring additional alarm bells.

The third event is the unilateral concentration of planning administration in the city in one central office, removing planning decision-making from the various sub-councils. This and the gutting of
the spatial planning, environment and land-use management committee by the mayoral executive committee are even more sinister from a democratic perspective.

The fourth and final warning bell is the tabling of a Proposed Amendments to Systems of Delegations for Economic, Environmental and Spatial Planning before the city council in order to further
facilitate planning centralisation in the city

In this proposal, one individual, the executive director: economic, environmental and spatial planning will effectively hold centralised control over all metropolitan planning authority

What appears to be under way is an unprecedented takeover of the planning and development of our city by developers and building companies which hold massive power through their non-transparent
funding of political parties. What is emerging is the potential for collusion and corruption on an almost unimaginable scale.

All of the above is profoundly undemocratic and is counter to our fundamental constitutional rights. Section-152 of the constitution states: “The objects of local government are to provide democratic
and accountable government for local communities.”

What is occurring, let alone what is proposed, is the very antithesis of this. It is also antithetical to the proper administration of the Municipal Systems Act, which must provide democratic and accountable local government that encourages active community involvement.

The DA-led city and province effectively indicate a desire to enable developers and construction firms to undermine our collective democratic rights. This is in line with the DA’s liberal principles which prioritise unfettered business and commercial rights, in this case from an urban planning and development perspective.

The DA is simply showing its true colours as a profoundly anti-democratic party which supports the interests of free and unfettered enterprise above and beyond those of individual or of collective
constitutional rights.

A collective Princess Vlei awaits us all, a chilling situation indeed.


11 June 2013

Honourable Mayor Patricia de Lille

Cape Town

Dear Madam Mayor

Another potential blow to democratic local government

Further to our letter of 05 June 2013 “The Essence of Democratic Local Government”, which dealt with the City of Cape Town Council agenda item C69/05/13, our Association has now learnt that a second document entitled “Repeal of Public Engagement Policy of the City of Cape Town approved by Council on 30 March 2009”, was due to be tabled as agenda item C68/05/13 at the same Council meeting, on 29 May 2013, adjourned to 30 May 2013.

Agenda item C68/05/13 proposed that the City’s Public Engagement Policy be repealed because:

    • it allocates functions to functionaries within Council for which no legal basis exists;
    • it is clumsy and lengthy;
    • it provides for public participation beyond the requirements of Section 17 of the Local Government: Municipal Systems Act 32 of 2000;
    • time and costs will be saved;
    • the duties discharged by the City’s Public Participation Unit will be minimized.

We are glad to learn this document was also withdrawn before the adjourned meeting took place, because the Public Engagement Policy adopted in March 2009 is a sensible one. However, we find it disturbing that the proposal to repeal this Policy was ever placed on the agenda, which means that its content found favour with the persons charged with the responsibility of vetting and approving subjects for discussion at Council meetings.

We find it even more disturbing that your agenda for the Council meeting of 29 May 2013 contained not one but two items, to be debated one after the other, which, if they had been adopted, would have virtually shut down entirely the present space for public participation in the workings of the City of Cape Town.

Both items C68/05/13 and C69/05/13 propose the introduction of policies that are the direct opposite of the Democratic Alliance’s (DA’s) core values. In the circumstances, it is worth quoting here the DA’s Governance Policy in full, as set out in the party’s website at

Governance Policy

There are five key components of an open society: 

    • A constitution that enshrines the rule of law, individual rights and freedoms, and the separation of powers.
    • Transparency and accountability, without which governments abuse their power and compromise the freedoms enshrined in the constitution.
    • Security of person and property.
    • An independent and free-thinking civil society, including a free and independent media and a free and independent political opposition that is loyal to the constitutional order.
    • A general tolerance of difference on the part of the population.
    • An economy that is characterized primarily by the free choices of individuals.

The two key ideas that unite these five components are the related ideas of individual freedom and the limitation of state power. They are related because an extension of state power necessitates a limitation of individual freedom and vice versa. In other words, an open society is one in which attitudes of the population provide the space for them to be themselves and pursue their own ends, and in which both the law and the attitudes of the population provide the space for them so to be.

In protecting and promoting an open society in South Africa, the Democratic Alliance must identify and oppose attempts to limit the space for individual freedom and actively promote the extension of such space.

It is also worth quoting here the last paragraph of the DA’s Vision, as expressed on the party’s website:

Therefore, in an opportunity society that also values individual freedom, the state’s role must be to facilitate, not direct the activity of citizens. If it provides services, it
must seek to expand choice, not determine choices; it must not simply “deliver” to a passive citizenry, which takes what it is lucky enough to get, but must allow the citizenry to
determine which opportunities it requires; it must encourage independence, not dependence.

In other words, the free, independent, active individual is at the heart of the opportunity society, both in determining the opportunities required and in taking advantage of them.

When considering these statements, which are required reading by every person who puts himself/herself forward for selection as a City of Cape Town DA councillor, it is unsurprising that the opposition by DA councillors at the Council meeting on 29 May to agenda items C68/05/13 and C69/05/13 resulted in them being not tabled. We repeat that we find it disturbing for the future of democratic rule in Cape Town that they were put forward for debate in the first instance.

As the author of the paper “Repeal of Public Engagement Policy of the City of Cape Town approved by Council on 30 March 2009” invokes legality as a reason for repealing this Policy, we would point out that section 195 of the S A Constitution, which is entitled “Basic values and principles governing public administration”, at 195 (1) states:

Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

(f) Public administration must be accountable.

(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.

We would also remind you of section 152 (a) of the Constitution and section 4 (2) of the Municipal Systems Act No. 32 of 2000 which we set out in our previous letter of 05 June. Section 152 (a) of the Constitution states:

The objects of local government are to provide democratic and accountable government for local communities.

Section 4 (2) of the Municipal Systems Act states:

The council of a municipality, within the municipality’s financial and administrative capacity and having regard to practical considerations, has the duty to:

(b) provide, without favour or prejudice, democratic and accountable government;

(c) encourage the involvement of the local community.

The City’s Policy on Public Engagement adopted in March 2009 enshrines the above principles. To now repeal this Policy would be a hugely retrograde step for an administration that claims to be democratic and loyal to the constitutional order of South Africa.

The proposal put forward in C68/05/13 also claims as cogent reasons for repealing the March 2009 Public Engagement Policy that time and costs will be saved and the Public Participation Unit’s duties will be minimised. It is appalling that such motivations, purely based on officialdom’s self-interest for an easy life, can be advanced for removing one of the basic pillars of a truly democratic government: the wholehearted involvement of the citizenry in the affairs of the state. To paraphrase a section of the DA’s vision:

In protecting and promoting an open society in South Africa, the Democratic Alliance must identify and oppose attempts to limit the space for individual freedom and actively promote
the extension of such space.

We trust that these attempts to stifle public participation on decisions concerning their lives will be consigned to the rubbish heap, where they belong.

Yours sincerely

Len Swimmer




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