There are several deficiencies in the current design of regulatory frameworks for the civil society sector.

This is one of the finding from a study commissioned by the National Development Agency (NDA) to analyse the current legislative, policy and regulatory environment for the civil society sector in South Africa, and the extent to which the frameworks impact on the functions and functioning of the sector. The study was conducted by the Human Sciences Research Council (HSRC) and Foundation of Human Rights (FHR).

One of the main deficiencies is that regulations that do not promote responsibility, transparency and accountability in the sector, instead assuming that the state must play an administrative justice role, with the sector’s only role being to comply.

The findings also revealed the need to review and amend the current regulatory framework in order to tailor-make interventions according to the sizes of various CSOs and CBOs.

“We commissioned this research to begin a policy development debate on behalf of the CSOs as a way to correctly locate accountability, responsibility and provide a path for the sector to take back their power to reach the country’s development goals,” says Thamo Mzobe, CEO of the NDA.

“It is clear from the findings that the current frameworks are somewhat a hindrance to the development process. However, it is encouraging that there is room and willingness to make improvements from strategic partners who support the participation and independence of the sector in a range of development initiatives.”

Other key findings point out to the poor implementation of regulations which in essence contribute to misconceptions about the nature and role of civil society, and the role that “regulation of CSOs” plays. Some of the reasons for this are closely related to the Department of Social Development NPO Directorate’s ambitious mandate as the primary regulatory body. However, this has not been matched by the necessary resources to effectively implement its mandate, resulting in weak implementation of its mandate and declining levels of compliance by CSOs with reporting requirements.

Thulani Tshefuta, chair of NEDLAC Community, outlines the “Limitations of Regulatory Frameworks for Civil Society in South Africa” and agrees that: “Active citizenry is one of the key tenants of achieving social capital, a position where people and communities are not just passive beneficiaries but part of the solution in their development.

“The introduction of regulatory mechanisms came with the promise of formalisation, professionalisation and increased funding for the sector. One of the unintended effects of the legal instruments is the erosion of self-responsibility and self-initiative, including intra-sectoral accountabilities.

“Top-down regulatory instruments tend to introduce the compliance versus course dichotomy. Regulatory measures must not change the DNA of civil society of agility, responsiveness, relevance, self-reliance and sustainability.”

He also notes that the current regulatory frameworks do not promote innovation that can come through social entrepreneurship. As such, NEDLAC recommends regulatory frameworks that help unleash and realise the potential CSOs and some elements must lead to the institutionalisation of public-community-partnerships to the scale of public-private-partnerships. Lastly, they need to consider self-regulation by the sector and outline government’s support thereof.

The establishment of a Presidential Advisory Council for NPO sector was recommended as part of a future proofing plan as well the design of a universally accessible funding collection and distribution mechanism for all components of the sector derived from 1% of all corporate social investment and philanthropic giving.