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‘The Logic of Appropriateness’: understanding non-compliance in South African local government

By Tracy Ledger

Abstract

Local government is central to the delivery of the state’s developmental agenda, but many municipalities record poor financial management and operational outcomes. Mainstream explanations of these focus on the low level of skills of officials and/or their self-interested and unethical behaviour. As a result, proposed remedies focus on training, raising ethical standards, and increased regulation. None of these initiatives appear to be working, however. Drawing on fieldwork which largely focused on investigating the narratives of non-compliance, this paper suggests that this issue is far more complex than the mainstream explanations suggest. Both codified and uncodified rules interact in complex ways to influence bureaucratic actions and decision making. The framework of ‘logics of appropriateness’ offers a more useful approach to explaining non-compliance in local government, because it facilitates a richer and more nuanced analysis of the multiple rules that determine the behaviour of public officials in post-apartheid South Africa.

Introduction

South Africa’s 1994 democratic transition was marked by significant institutional transformation in both structure and the operational mandate of the state. Many changes were implemented in local government: indeed, changes here were more significant than those which took place at the provincial and national spheres of government. Prior to 1994, local municipalities covered only a relatively small area of South Africa. They were mostly confined to the urban and peri-urban areas designated for white South Africans, and were responsible for the delivery of a limited number of services. The most important of these were electricity and water reticulation, refuse removal and urban planning. Municipalities in general enjoyed little autonomy or authority in terms of any wider socio- economic development mandate; they operated with relatively small budgets; and were generally subservient in position to government at the provincial level, although the details of that relationships varied across provinces. This structure reflected the strong central control focus of the apartheid government, necessary to ensure that its policies were implemented uniformly across the country, with no local deviation tolerated (Klug 2016).

Under the new 1996 Constitution the inter-governmental relations (IGR) institutional framework changed significantly. These changes were in line with – and aimed to give effect to – the democractically-elected government’s objective to become a ‘developmental state’. The latter term was broadly understood to mean that the state had a key role to play in addressing the socio-economic injustices of the apartheid past (Tshishonga and de Vries 2011), and to effect an improvement in the quality of life of all South Africans (RSA 1998). A radically different kind of local government – sometimes called, ‘developmental local government’ (RSA 1998:9) – was considered central to achieving these goals. For this project to succeed, South Africa would need municipalities which covered every part of the country, reached all its citizens and greatly increased its responsibilities for the delivery of public goods and services. The implication was that almost every good or service to be delivered by the state would be within the spatial authority of a local municipality. The greatly extended reach and power of local government was intended to entrench democracy by creating a strong and autonomous part of the state that was in close proximity to citizens. It was hoped that this spatial proximity would ensure greater state responsiveness to local needs (RSA 1998). Moreover, local government would need to be an equal sphere of government with considerable autonomy over its own affairs, including budget development, expenditure allocations, staffing and local economic and spatial development. The new fiscal framework, which introduced the concept of an equitable share of national revenue for each sphere of government, greatly increased the financial resources available to local government, reflecting their expanded development responsibilities. In order to give municipalities the ability to manage their affairs and allocate their resources in line with local priorities, provincial and national government would have far less direct authority over them.

As a result of this new framework, local government in post-apartheid South Africa has to deal with a long list of critical socio-economic responsibilities – including the delivery of all basic services, economic development and land-use regulation – coordinated in the municipal integrated development plan (IDP), as required in terms of the Municipal Systems Act of 2003. Given these responsibilities, any failure by local government to deliver on its mandate undermines the developmental agenda nationally. Unfortunately, short-comings are widespread, with many municipalities consistently unable to meet their budgeted service delivery targets, and citizens generally dissatisfied: a 2017 study by Statistics South Africa indicated that 75 per cent of households did not believe that their municipality was addressing their (self-assessed) priority needs in respect of basic services (StatsSA 2017). As concerning, however, are failures of governance: a significant percentage of local municipalities consistently fail to meet prescribed governance standards, particularly in respect of financial management and supply-chain management (AGSA 2019), resulting in resources being not spent in accordance with national development priorities.

As the Auditor-General of South Africa (AGSA) put it:

… municipal audit results that show an overall decline in audit results for the 2017-18 financial year.  this undesirable state of deteriorating audit

outcomes shows that various local government role players have been slow in implementing, and in many instances even disregarded, the audit office’s recommendations. As a result, the accountability for financial and performance management continues to worsen in most municipalities.

… The impact is that the fiscal resources placed at their disposal are either misused or not properly accounted for as required by public finance management laws. (2019a:1)

In the 2017/18 financial year, only 8 per cent of the 257 municipalities and 21 municipal entities audited by the AGSA were able to comply with all applicable legislation, slightly over half the percentage recorded in the previous financial year. This was reportedly the highest level of non- compliance since the 2011/12 financial year, suggesting a marked deterioration in compliance with key governance legislation. Only half of all auditees in the 2017/18 financial year achieved unqualified audit opinions (AGSA, 2019b).

Financial and operational failures have occurred despite extensive regulation of local authorities’ governance and oversight responsibilities, and a steadily increasing volume of such regulation over the past ten years. Indeed, there is a growing belief that local government is significantly over-regulated, and that the cost of compliance is adversely impacting service delivery (SALRC 2019, FFC 2014). Poor governance thus co- exists (perhaps, even increases in scope) alongside an extensive and detailed regulatory system intended to improve outcomes. The conclusion may be drawn, then, that generally poor governance in local government represents a failure of compliance, rather than any significant gaps in the regulation itself. That is, governance failures are the result of officials failing to follow legislated rules, rather than an absence of regulation.

The AGSA’s reporting indicates that the most common area of non- compliance was in respect of the management of procurement and contracts (AGSA 2019b). Another area where there is apparently widespread non- compliance is in respect of the appointment of staff in key senior positions within municipalities. The importance of having appropriately skilled and experienced persons in these posts has resulted in the National Treasury issuing detailed regulations in this regard: the Municipal Regulations on Minimum Competency Levels were first issued in 2007 (Gazette 29967) and updated in 2018 (Gazette 41996). These regulations specify both general and minimum competency levels (which cover both formal qualifications and relevant working experience) for municipal managers, chief financial officers, senior manager, financial officials and supply chain management officials. Despite the detailed and comprehensive nature of the regulations, and the clear intention that their application was mandatory, it was reported in 2018 that fewer than half of all municipal managers (who are the designated ‘accounting officers’ of municipalities) met the regulated minimum competency criteria, and fewer then one third of all chief financial officers met the required minimum.1 This was despite the fact that the regulation states that ‘(a)fter 1 January 2013 no person may be employed (as a chief financial officer) that does not meet the requirements of the Regulations’ (National Treasury 2007:4).

All of this regulation across a wide range of functional areas prescribes the details of the bureaucratic practise (appointment of officials, supply chain management, financial management, etc) that officials are required by law to follow. In this paper, these legislated, regulated and similar rules are referred to as the ‘codified’ rules that govern (or should govern) the behaviour of local government officials and determine their choice of actions in particular circumstances.

And, so, to ask an obvious question: why are so many local government officials across the country’s municipalities not complying with the codified rules? The related question follows: why are the elected representatives to whom these officials report not exercising their legislated oversight role to ensure that officials do comply, or why, indeed, do they themselves break these rules? Given the inter-government (IGR) framework within which local government operates, it is near impossible for either of the other two spheres of government – provincial and national – to compel broad regulatory compliance unless a particular municipality is in a state of complete financial and operational collapse.

The relative impotence of these two spheres of government in compelling compliance is illustrated by a written response of the minister of Finance to a question in Parliament about what the National Treasury was doing (or planning to do) to enforce compliance with the Regulations in respect of the competency levels of municipal officials: ‘National Treasury has played an advocacy and supportive role to-date in promoting compliance of the regulations … (and) the Minister of Finance will promulgate an amendment to, amongst others, regulations 15 and 18 of the Municipal Minimum Competency Regulations’.2 Essentially, then, the minister expressed the view that the only avenue open to National Treasury in respect of improving compliance is persuasion at the inter-governmental level, and more regulation – put prosaically, he suggested more of what has not worked since the regulations were first gazetted in 2007. In turn, this approach reflects that of the Auditor-General office, which also finds itself in the position of not being able to compel compliance, but merely to point out the fact of non-compliance. (In terms of the new Public Audit Amendment Act – which came into effect on April 1, 2019 – the auditor- general has new powers to recover funds deemed to have been lost as a result of ‘material iregularities’. It remains to be seen how these new powers will be implemented, and their effectiveness.)

The general lack of success of these cooperative governance framework approaches suggests that they are poorly correlated with the on-the- ground factors that are actually contributing to non-compliant bureaucratic behaviours. Put differently, institutions such as the National Treasury and the AGSA do not appear to have particularly good insights into the underlying reasons for non-compliance, but instead have adopted an instrumentalist approach that all regulation will simply be implemented if it is interpreted correctly and within the capabilities of the implementing party. It follows that if levels of regulatory compliance are to improve, more appropriate approaches to non-compliance need to be explored. These need to take into account what factors actually underpin non- compliant behavior. It is imperative that we have better insights into why local government officials fail to observe the codified rules that should govern their actions and decision-making. Without more accurate insights into this causality, more effective solutions cannot be brought to bear.

Although the focus of this paper is with local government, non- compliance is found in all parts of the South African state, and its cost is particularly high in the state-owned enterprises. It is likely that related factors underpin many manifestations of non-compliance across different spheres of government. Better insights into non-compliance in local government may offer insights into the same malady in other parts of the state.

Dominant explanations of non-compliance

Two dominant narratives are often put forward to explain non-compliance in local government: the low technical capacity of officials, and their unethical behaviour. The first narrative (which we will call ‘the capacity explanation’) argues that the main reason for non-compliant behaviour is a lack of technical skills and/or sufficient knowledge of the applicable regulation (Draai and Oshoniyi 2013). So, officials are not complying with, say, financial oversight regulation because they do not have the requisite financial management skills to understand what the regulation requires or how to meet those requirements. Additionally, the capacity explanation proposes that a lack of clarity in certain regulation, or complexity in its correct application contributes to low levels of compliance – in other words, public officials are not always clear what is required of them, or it is difficult to comply with the regulation because of a complexity which is beyond the technical capacity of officials (Khambule 2020, Blaser Mapitsa and Landau 2019). The complexity of the regulation (particularly in respect of financial management and oversight) is thought to be a particular contributing factor undermining the ability of councillors to exercise the necessary oversight over local government officials in order to ensure compliance with a wide range of regulation.3

Related to this individual capacity explanation is what we might call an ‘institutional resources explanation’ strain: this argues that many (particularly, smaller) municipalities with limited budgets fail to fill key posts with individuals who have the required skills because they cannot afford to pay them the requisite salary (Draai and Oshoniyi 2013). The numbers do suggest that there is indeed a problem with filling key positions: in 2018, it was reported that 64 municipalities (out of a total of 278, or 23 per cent) did not have a permanent municipal manager; and 39 (14 per cent) did not have a permanent chief financial officer.4

The second mainstream explanatory narrative (we will call it ‘the ethics explanation’) fingers a general lack of the ‘correct’ ethical behaviour in the public service as the main reason for non-compliance by officials. This narrative is rooted in the belief that if public servants prioritise their personal interests (such as increasing their personal wealth), they will not comply with legislation which aims to promote the common good. Protagonists of this explanation (such as the AGSA) point to the high levels of procurement expenditure that does not fully comply with supply chain management regulation (the total of such expenditure in local government in 2018 was R25 billion) (AGSA 2019b) as ‘proof’ that significant numbers of public officials in local government are breaking the rules in order to enrich themselves.

The blanket term, ‘corruption’, is often applied – across civil society, in the media, and within much of government – both to identify and to explain the many cases where municipal officials have failed to follow the codified rules, particularly in respect of supply chain management and financial controls. This term, with all of its pejorative undertones, is intended to attribute particular motivations – and thus to invoke a particular set of causal assumptions about personal ethics – to non-compliant behaviour (Pierce 2016).

The ethics explanation presents a narrow interpretation of human behaviour which is centred around the methodological individualism of rational choice theory. So, municipal officials are assumed to calculate the potential personal costs and benefits to themselves of a particular course of action, and then choose accordingly. Officials with low ethical standards will always choose non-compliance if they stand to benefit personally from that decision.5 The popularity of this explanation reflects and resonates with deeply-held racist beliefs that are all too common in post-apartheid South Africa: ‘they’ (read black officials) are patently incapable of managing local government (or, indeed, the state), because ‘they’ are fundamentally incapable of so-called moral behaviour.

In the present paper the term ‘non-compliance’ is used in preference to the term ‘corruption’. This is because it better captures a range of behaviours where officials have not conformed with all the prescribed rules, but where the capacious label of ‘corruption’, as it is generally understood in the public discourse, is not easily applied. This includes instances where officials do not disconnect households when their municipal accounts are in arrears, or where municipal funds are used to pay for the funerals of itinerant citizens, or where municipal income is shared with local traditional leaders in return for their cooperation in extending the area of formal townships. These actions are not compliant with the regulated requirements of municipal financial management and its oversight requirements, and sometimes represent a clear circumventing of this regulation, but they do not always reflect a simple set of motivations driven entirely by the desire for personal enrichment. In addition, research undertaken by the Public Affairs Research Institute (PARI) in respect of non-compliance, suggests considerable unevenness around this issue: local government officials can adhere to the rules in one set of circumstances, but break them in others. The differentiating factor between these circumstances is seldom an opportunity for personal financial gain, which further undermines the catch-all notion that the term ‘corruption’ is the key explanatory factor behind rule breaking (PARI 2013).

‘Corruption’ in the wider notion of rule-breaking proposed in this paper, is thus conceptualised as a category (even, perhaps, a degree) of non-compliance, rather than constituting its totality. Focusing on the notion of ‘non-compliance’, rather than just ‘corruption’ in a tighter definition, provides more nuanced and useful insights into other (non- financial) governance areas where the behaviour of officials deviates from what is required in formal regulation. Apart from the examples of non-compliance considered above, a policy-implementation gap may also be a case of non-compliance that is not necessarily corruption, either in motivation or in outcome. This gap arises when officials consistently fail to implement applicable national or provincial policies in the local sphere. The complaint ‘we have wonderful policies, but they do not get implemented’ is regularly heard across the South African state.6 Some analysis suggests that the reasons for the policy-implementation gap are lack of skills and/or relevant capacity, ie the ‘capacity explanation’ (Sayeed, Reddy and Pillay 2015), but other research recognises the challenges of the localisation of national policies, and thus the possibility that such policies will not be implemented because they do not represent a good fit with local circumstances and priorities (Hudson, Hunter and Peckham 2019). Although it may not be corruption, policy-implementation gaps can seriously undermine the national development agenda, and thus better insights into causality are key to the success of that agenda.

As is clear these two explanations – ‘capacity’ and ‘ethics’ – have considerable discursive power in South Africa, and they have very effectively excluded alternative explanations from the national debate on the issue of non-compliance. This discursive framing of causality is, in turn, central to how solutions to non-compliant behaviour have been framed, designed and implemented. Unsurprisingly perhaps, the central focus of these solutions is training – both in respect of the technical skills believed to deliver better compliance, and increasingly, in respect of ethics. The ideal outcome is often framed as one where public servants have ‘the skills and competencies to make ethical decisions’ (NSG 2018:8, emphasis in original).

Clearly these dominant explanatory narratives do explain some portion of non-compliance in the public sector. The regulation around supply chain management, financial management, and performance reporting in local government is complex. So, it is no surprise that research suggests that many officials do struggle to comply with all the regulation all the time, even when they are strongly motivated to do so (Chipkin 2013). This author’s own research in local government corroborates this view, particularly in the case of smaller municipalities with limited resources (see Ledger, Chilenga and Rampedi 2016). Much has been written in the media,7 and concerned opinions expressed by senior national government officials,8 about the very low levels of formal education among local government councillors, as well as officials, which limits the former’s ability to exercise the necessary oversight over the latter. The author’s work in this regard suggests that many of the Municipal Public Accounts Committees (MPACs) in local government are comprised of elected councillors who do not have financial qualifications, and display a limited knowledge of financial reporting. In such cases it is not surprising that many MPACs are unable to exercise the oversight required to ensure that their municipality complies with financial management and reporting. However, these examples of limited skills in respect of certain functions do not paint the entire picture of non-compliance, which in reality is much more complex. Local councils regularly appoint municipal officials who do not meet the regulated minimum competency standards: in a written reply to a parliamentary question in 2018, the minister of Finance indicated that only 37 per cent of municipalities had municipal managers that met the legislated minimum criteria, and only 31 per cent had chief financial officers that met those criteria.9 This was despite the fact that these regulation were promulgated in 2007.

Other research (Meny-Gibert 2019) cites examples of non-compliant behaviour among officials (in this case, a provincial department of education) even when the codified rules that were being broken were both extremely clear and demonstrably well-understood by the non-compliant officials themselves. Therefore, a lack of capacity and/or complex regulation does not appear to be an exhaustive explanation of all non- compliance, and in some examples of non-compliant behaviour it appears to be a particularly poor explanation.

Undoubtedly, there are instances of non-compliance which are motivated by personal gain, in the form of either direct personal advancement or the strengthening of networks of influence. These bureaucratic practises can often be labelled as ‘corruption’, and there is no disputing that this can be a factor behind non-compliance. However, it is not clear exactly what portion of non-compliant behaviour can be attributed to the two explanatory narratives which have been outlined above. PARI’s work (PARI 2019, PARI 2013) across a wide range of state institutions, and this author’s own research in multiple local government sites (detailed below), indicates clearly that there are other factors that influence the decision-making and work-place behaviour of officials. Moreover, these often appear to be the most important factors in determining how officials behave in these institutions, rather than secondary, minor influences. Finally, PARI’s research has repeatedly found that there is considerable unevenness in rule breaking: officials who regularly and consciously break the codified rules in one area of their work may meticulously stick to the rules in others (PARI 2013). Such unevenness is not explained in the mainstream narratives, suggesting that these miss a large part of the real story of non-compliance.

Research method

These ‘other’ drivers of the behaviour of officials potentially offer the foundation for alternative, and more comprehensive, explanatory narratives of non-compliance. Such explanations could support the development of alternative – and, potentially, more effective – solutions to the issue of non-compliance, by providing additional insights into the complexities of the decision-making of public officials.

The details of these ‘other’ explanations of non-compliance have become evident through the application of PARI’s main research method – viz, ethnographic work conducted within the state. This approach aims to obtain insights into bureaucratic practises from the perspective of those inside the state – both administrative officials and elected representatives. This approach reflects the work of Akhil Gupta, the Indian-American anthropologist, who asserts that paying close attention to ‘the everyday practises of local bureaucracies’ (Gupta 1995:375) can provide insights into the drivers of non-compliant behaviour that otherwise remain invisible in the mainstream explanatory narratives. It also echoes Olivier de Sardan’s view, that we should pay greater attention to how non-compliance is ‘seen from the actors’ point of view’ (Olivier de Sardan 1999:2). Thus, the ethnographic approach attempts to explain the drivers of non-compliant behaviour as these are understood by the individuals in question, in a particular setting, and at a particular moment. This approach differs from most current research and public commentary on non-compliance, which largely ignores the views of these insiders, particularly those who occupy less senior administrative positions.

The ethnographic findings referred to in this paper draw on the research projects detailed below, in each of which the author was the lead researcher. In each project, the same approach was taken to conducting interviews: researchers spent time in semi-structured conversation with municipal officials, from the most senior down to junior employees, as well as elected councillors. Almost always the interviews were conducted on an individual rather than a group basis. This provided an opportunity to recount versions of life in the municipality, away from the possible censure of colleagues and managers. Numerous individual interviews also provided an opportunity to observe the same set of events – say, the financial collapse of a municipality – from multiple viewpoints. Our goal in this work was to elicit information about why codified rules and codes of professionalism are ignored or broken, in what contexts these take place, and why it takes particular forms. Experience over many years suggests that most municipal officials are eager to present their personal experiences and views on these subjects, possibly because they are so very seldom asked to do so.

Here follows the list of the research projects:

  1. An investigation of the factors that contribute to extremely poor municipal audit outcomes (PARI 2016). This research focused on municipalities that received disclaimer audit In the 2013/14 financial year there were 60 such, and 43 of these were included in the research. The aim was to interview the municipal manager, chief financial officer, chair of the Audit Committee, chair of the MPAC, and senior staff in the finance team in each municipality.
  2. An investigation into the efficacy of SALGA’s Municipal Audit Support Programme (MASP) under which they provided support to municipalities (Ledger et al 2016). At the time of the study, 89 municipalities were part of the Interviews were conducted at 17 of these municipalities, the remainder received questionnaires to complete.
  • An investigation into the poor outcomes of Section 139 interventions in local government (Ledger and Rampedi 2019). This included interviews conducted at six municiplaities that had been under a S 139 intervention some time within the previous three
  1. An examination of the corporate culture within the Gauteng Department of Health that may have contributed to the Life Esidimeni tragedy (PARI 2019). A range of officials, from the head of department to more junior officials were

 

Much of this research focused on local municipalities with long records of poor governance outcomes – municipalities that regularly receive very poor audit opinions, are in (or close to) a state of financial and/or operational collapse, and are the sites of multiple allegations of ‘corruption’ and political infighting. These are places where compliance with the codified rules is low, across a range of functional areas and involving a considerable number of officials. They are thus excellent places to obtain multiple insights into this non-compliance, from the point of view of local government officials themselves, expressed through their own narratives of day-to-day bureaucratic practices and their personal histories in the municipality.

The narratives obtained in this research have been used to document actual bureaucratic practices, which often differ significantly from those prescribed (ie codified in regulations). All these narratives present an account of how and why the interviewee adopted a particular course of action with respect to a particular bureaucratic function, either compliant (ie following the codified rules) or non-compliant.

Uncodified rules and non-compliant actions

In what follows, the position has been adopted that ‘the basic logic of action is rule following’ (March and Olsen 2005:8). That is, the underlying assumption is that all actions undertaken by local government officials – whether these are compliant or non-compliant – reflect the following of rules, rather than being random or completely ad hoc responses to circumstances. The implication of this assumption is that when officials are engaging in non-compliant behaviour they are still, in fact, following some set of action-determining rules, but these are not the codified rules. The conclusion that may be drawn is that the motivators of both compliance and non-compliance are action-prompting rules: non-compliance may be conceptualised not just as ignoring rules, but rather as the intentional selection of some other rules in preference to the codified ones. That is, the choice of another rule when a  codified rule is applicable, represents  a conscious rejection of the codified rule by the official in question. It is thus a judgement of the codified rule against some other set of criteria.

The aim of our analysis of non-compliance in local government is to obtain insights into the details and source of the action-prompting rules that are being followed in instances of non-compliance, as well as to understand why the codified rules were bypassed; why some other rules were judged more important in determining a particular choice of action. We begin, therefore, from the position that both sets of rules have relevance, from the perspective of the actors in question.

One of the key limitations of the mainstream explanations is that they focus on what officials are not doing, rather than on what they are doing. These ‘not doing’ explanations lump all non-compliant behaviour into one homogenous category, defined by what it is not, rather than by what it may be. For example, the auditor-general’s (AGSA’s) regular reports on local government audit outcomes tell us a great deal about what people are not doing, rather than exactly what they are doing in the process of engaging in non-compliant actions. As a result, scant attention is paid to the granularity of non-compliance, beyond the fact of its non-compliance. Reflective of this, explanations of non-compliance focus almost wholly on hypothesising why officials are not following the codified rules, rather than why they are following some other rules, and exactly why they have chosen to follow the latter rather than the former. It is the illumination of these other motivating factors will provide a more nuanced (and accurate) understanding of non-compliance.

This paper thus proposes that we should understand non-compliant actions as representing the presence of something, rather than the lack of something. Through this approach we may obtain better insights into the causality of non-compliance by investigating it in terms of what it is, rather than what it is not. These other action-prompting rules will be called ‘uncodified rules’ in order to distinguish them from codified ones. The descriptor ‘uncodified’ is preferred to the more commonly used ‘informal’ in order to avoid the a priori assessment that uncodified rules are somehow less important – so more casual – than codified rules.

Our work indicates clearly that, far from being secondary, less important factors that drive bureaucratic decision-making, uncodified rules are often the vital factors in choosing among alternative courses of action – in this sense they are regularly the drivers of non-compliance. Focusing on both codified and uncodified rules as potentially occupying the same level in some sort of action-inducing causal hierarchy provides a more nuanced insight into the drivers of behaviour, and shows up the complexities involved in non-compliance. The specific manner in which codified and uncodified rules interact to determine bureaucratic behaviour varies across different institutions, in specific contexts, and at particular points in time.

One of the key methods through which insights into the details of uncodified rules – as well as the relationships they have with the codified rules – is the narratives of local government officials; by their recounting, descriptions and perceptions of the particular set of circumstances that resulted in non-compliant behaviour; and how they understand the status of both codified and uncodified rules in their organisation. Without this ethnography, uncodified rules remain invisible, and can only be speculated upon. As just one example, consider the case of the municipal council which appoints senior officials who do not meet the regulated minimum competency standards. In response to our queries in this regard, they did not cite ignorance of the relevant statute as the reason for their non- compliance. Instead, their explanation stressed the importance of uncodified rules in the immediate circumstances. They emphasised the necessity of appointing a person who obtains the approval of all the local political factions as more important than whether, or not, that official meets all the minimum competency requirements (Ledger and Rampedi 2018). So, local factions will support particular candidates irrespective  of whether or not they meet the legislated minimum competency requirements. Put in the register of the overall argument, codified rules which stress technical competency are not deemed to be the priority factors for determining nominations. Instead, the prioritisation of local political factors in these circumstances – which is often interpreted as ‘evidence’ of corruption – is instead a matter of pragmatism. Senior officials that do not enjoy the trust and support of all influential local political groupings are unlikely to succeed in a position that requires trade-offs of competing ends in the immediate environment. In colloquial language, ‘they will get the job done’ often in circumstances of limited financial resources, and in the face of community resistance to municipal development plans. The latter circumstances are the rule rather than the exception in South Africa, which is why broad-based political support is often more important than are formal qualifications and skills. The uncodified rule in this example is the clearly understood – and articulated – requirement that all local political powers must be consulted before an official is appointed, and that potential candidates are drawn from a list drawn up by the same political interests.

The factionalised political environment within which officials have to work, and the constant interference of elected officials in the bureaucracy, is effectively ignored by protagonists of the codified rules, but it is a critical factor in the administration of local government. The decision of the ruling party to establish a branch in each municipal ward has resulted in fierce competition among these branches for municipal resources, and aggressively to prioritise the interests of their ward over those of others. The outcome is constant pressure on bureaucrats to channel resources in  a way that will support and extend the patronage network of local politicians (Bénit-Gbaffou 2012). The daily reality of this competition can undermine the efforts of officials to follow the codified rules (Beresford 2015): one example is in respect of the collection of outstanding accounts, or the suspension of services to non-paying households as specified in debtor management regulations. Ward councillors will strongly resist such actions in their respective bailiwicks, fearing that this will undermine their chances of re-election. They often apply considerable pressure on municipal officials not to follow these codified rules (see for examples PARI 2019, Ledger and Rampedi 2019, and Ledger et al 2016).

The range of uncodified rules that leads to non-compliant behaviour is multiple and complex: action is seldom prompted by the consideration of only one rule, codified or uncodified. Some patterns emerge in our research to suggest the importance of particular categories of uncodified rules. One of these is intimately linked to the power that is exercised over an official by holders of political power. These may be senior political officers within the municipality – say, the mayor, the relevant member of the Mayoral Committee (MMC) or senior office bearers in the ruling party, particularly in the Provincial Secretariat. Apart from the very real threat of personal violence, senior politicians often have considerable power (either direct through statute or indirect through political influence) to terminate the employment of officials. All senior local government officials who report directly to the municipal manager (the so-called Section 56 officials) are not permanent employees. Instead, they are appointed on fixed-term contracts, which may be renewed at the municipality’s discretion. All these officials are aware of the fact that the contracted nature of their employment makes them ready targets for dismissal. Their contracts can be terminated and the balance of the contract term simply paid out. As a result, there is very little legal space to argue that dismissals were unfair. Alternatively, the contract may not be renewed at the end of its period. Officials who earn a reputation as ‘trouble makers’ will often find themselves unable to be employed elsewhere in local government, even if they meet all the statutory requirements for a position.

The failure to follow the instructions of a person politically more powerful than oneself can thus have serious personal consequences. Our work has shown that in institutions where influence by politicians on daily operations is high, and regularly used to direct bureaucrat actions, it has become the institutional norm for officials to follow these ‘political’ instructions, even when they require non-compliant actions (PARI 2019). Those who have political power in the institution may use the same tactic to prompt an official to engage in a non-compliant action, such as refusing to send debt collection agencies to collect arrear accounts, or not disconnecting non-paying customers, or circumventing supply chain regulations. Although the mainstream ethics narrative suggest that all public officials should prioritise the interests of the state over their own under all circumstances, unemployment is invariably a large and tangible threat. This is particularly so in areas that already have very few employment opportunities, and where an unemployed municipal official is the sole breadwinner in the family. These outcomes bring into focus another important set of uncodified rules that are often at play: personal and family financial commitments (PARI 2013).

Nor are these the only ‘personal’ issues that define another important category of uncodified rules. Rather than being the one-dimensional public servant of mainstream explanatory narratives of non-compliance, public sector officials (both elected and administrative) enjoy multiple identities, each with their own behavioural requirements, commitments and expectation: so, they are government employees, members of their community, members of their family, followers of a political party, members of local community and/or political networks, and so on. Each of these identities is present when officials weigh up alternative actions, and each of these identities is associated with uncodified rules, such as family responsibilities, or community allegiance, or indeed, loyalty to a particular political party. If these uncodified rules carry sufficient weight in the perception of the official, non-compliant actions may be the result (Misangyi, Weaver and Elms 2008).

In addition, PARI’s research (Ledger et al 2016) has repeatedly indicated that many officials engage in non-compliant behaviour because they believe it to be the most ‘ethical’ course of action, in a particular set of circumstances. There thus appears to be a category of uncodified rules related to perceptions of the social justice (‘transformative’) responsibilities of the state, as these are understood by local officials. As just one example, we have regularly encountered a strongly-held belief among senior officials in small rural municipalities that preference in employment opportunities should be given to ‘our people’ (read: local people) and that to do so, is to give effect to the developmental mandate of local government. This belief is often echoed in local communities, and protest action is sometimes generated by the perception that ‘our people’ are not being given that expected preferential treatment. The term ‘our people’ is generally held to mean persons who have lived for a particular period of time in the municipality or have strong historical ties to it, and also share a need for the state’s ‘support’, manifested in their unemployment or struggling small businesses. They are also, in many instances, members of the local ruling party. But the groups designated as ‘our people’ in these municipalities often have very limited formal education and work experience, because of a centuries-long history of discrimination and deep poverty. Official recruitment processes (viz, the codified rules) are heavily weighed against local communities. The competing uncodified rule to be followed in this instance is the perceived normative role of the local municipality in supporting its ‘own people’. This is considered to be a better use of the municipality’s need to provide employment than the outcome likely to result from following the letter of the law in terms of recruitment. This is one example of how non-compliance reflects the conscious rejection of the codified rules on grounds that are much more complex than the mainstream ‘ethics narrative’ would have us believe. In these instances, officials have found these codified rules to be lacking in some key respect of the perceived social justice role of the state. Certainly this reasoning has been used to make some questionable appointments in local municipalities, and to achieve personal agendas, but the abuse of the uncodified rule does not negate its existence, nor imply that it is not genuinely applied in many instances. In consequence, non- compliance can sometimes be understood as a desire to reject the codified rules, rather than just the desire to be non-compliant. That is, if the codified rules were different, officials might comply. This is an important insight into non-compliance, since it suggests that the remedy may sometimes lie in revisiting the codified rules, rather than dogged insistence on their implementation.

The logics of appropriateness framework

How might we interpret the initial insights obtained from the complex narratives of non-compliance? How can we bring to the surface behaviour that is effectively made invisible in current explanatory narratives? How might we move from negative descriptions of non-compliance (viz, what they are not) to positive descriptions (viz, what they are)? How could we interpret the unevenness of the manifestations of non-compliance, within institutions and across time, and the reality of multiple identities for public officials?

The idea of ‘logics of appropriateness’ (LOA) is a framework to understand rule-following human behaviour in institutions (March and Olsen 2011) and thus for interpreting institutional outcomes such as the non-compliant behaviour of officials within that institution (Cole 2011). Importantly, for our purposes, the LOA framework considers all the rules that impact behaviour, not just the codified rules. LOA implicitly rejects the notion that all decision-making is based on rational choice alone, but rather that social and particular institutional norms (which may shift over time) are central in determining what and how administrative actions are chosen.

The LOA approach posits that the behaviour that results from following the germane rules is deemed appropriate because it is generally understood within an institution to be associated with a particular institutional role. It is, therefore, an appropriate lens through which to recognise and assess the effect on bureaucratic practises of, for example, the political- administrative interface within a particular institution. This may be very different from the impact within another institution. It is these rules that determine officials’ understanding of what the ‘correct’ role is for them in a particular set of circumstances, and thus how they ‘should’ behave in those circumstances. Rhodes, Binder and Rockman propose that ‘institutions can be considered as embedding rules and routines that define what constitutes appropriate action’ (2006:xvi).

The LOA framework thus provides an insight into a certain institutional culture based on following political instructions even when they require non-compliant behaviour (PARI 2019): this bureaucratic response has become the ‘appropriate’ behaviour within that institution, ‘the way that things are done around here’. Our research (PARI 2019) has repeatedly suggested that it is in the uncovering of what is considered ‘appropriate’ within an institution that many insights into non-compliant behaviour or unexpected institutional outcomes may be obtained.

LOA posit thus a strong link between a public official’s sense of ‘who I am in this particular role’ and their choice of actions. There is a strong link between the narrative and what is deemed appropriate behavior within an organisation: the organisational narrative is a central way in which appropriate behaviours are refined, develop, understood and communicated (Abolafia 2010). When local government officials share with us their narratives of how and why compliant and non-compliant actions occur, and how they view these, they are communicating the relevant LOAs.

LOAs interact in multiple ways with an individual’s sense of identity, at a point in time, in a particular situation within that institution, as well as the normative obligations that may be associated with each identity: ‘Actors seek to fulfil the obligations and duties encapsulated in a role, an identity, and a membership in a political community. Rules are followed because they are perceived to be adequate for the task at hand and to have normative validity’ (Olsen 2007:3, emphasis added).

The notions of rules both having a normative component and being institution-specific – viz, not being universal or uniformly valid – support our observations around the considerable unevenness of bureaucratic practises across the South African state (PARI 2013). LOAs are a particularly useful framework for interpreting such unevenness, because they specifically recognise that different behaviour-motivating rules may be applicable at different times and locations within an institution.

Conclusions

Mainstream explanations of levels of non-compliance in the public sector centre on the lack of capacity within institutions (particularly, the skills- sets of officials) and a lack of ethics. Neither of these explanations provides a complete or comprehensive account of the drivers of non- compliant behaviour. Ethnographic work based on recording the narratives of non-compliance of public officials suggests that the factors that drive non-compliant behaviour are more complex than these mainstream explanations suggest.

The logics of appropriateness (LOA) framework provides an essential analytical lens through which nuanced insights into non-compliant behaviour may be obtained. Its use suggests that we focus our attention on the contents of the rules that guide actions undertaken by officials, as these rules are understood and prioritised by those particular officials themselves, in order to better understand institutional outcomes. Focusing on the rules that guide the actual bureaucratic practises of officials, rather than the details of those practises themselves, can provide important insights into non-compliance.

The mainstream explanatory narratives of non-compliant behaviour posits a rule-based approach to the behaviour of government officials, in a limited and rigid manner. They also set narrow a priori limitations on what rules are relevant in considering non-compliance: their underlying assumption is that the only rules that ‘matter’ in respect of bureaucrat behaviour are the codified ones – the official rules written down in statutes, regulations and guidelines and the like. As PARI’s research shows, the importance of uncodified rules in determining actual bureaucratic practises: non-compliant actions represent the following of uncodified rules, and the analysis of the narratives of non-compliance provide insights into the nature and form of these uncodified rules.

Notes
  1. https://www.politicsweb.co.za/documents/most-municipalities-lack-aos-or-cfos-with-minimum-
  2. https://www.politicsweb.co.za/documents/most-municipalities-lack-aos-or-cfos-with-minimum-
  3. http://www.sabcnews.com/sabcnews/there-is-a-great-need-for-councillors-to-be-educated-mkhize/
  4. https://www.politicsweb.co.za/documents/most-municipalities-lack-aos-or-cfos-with-minimum-
  5. https://www.news24.com/news24/analysis/first-take-unfit-to-govern-popo-molefe-and-raymond-zondos-scathing-indictment-of-the-anc-20200701
  6. https://www.iol.co.za/business-report/economy/sa-has-good-policies-but-lacks-implementation-trade-and-industry-official-18866675
  7. https://citizen.co.za/news/south-africa/government/2157150/wield-the-big-stick-to-save-dismal-municipalities-dlamini-zuma/
  8. https://www.politicsweb.co.za/documents/municipalities-hire-the-right-people—nkosazana-dl
  9. https://www.politicsweb.co.za/documents/most-municipalities-lack-aos-or-cfos-with-minimum-

 

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