Cross Boundary Municipalities Laws Repeal A/B; Constitution Thirteenth Amendment Bill [B24-2007]: briefing & submissions

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Cooperative Governance and Traditional Affairs

07 August 2007
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Meeting Summary

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Meeting report

 

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
08 August 2007
CROSS BOUNDARY MUNICIPALITIES LAWS REPEAL AMENDMENT BILL; CONSTITUTION THIRTEENTH AMENDMENT BILL: BRIEFING AND SUBMISSIONS

Chairperson:
Mr S Tsenoli (ANC)

Documents handed out:
Cross-Boundary Municipalities Laws Repeal And Related Matters Amendment Bill [B 25-2007]
Cross Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005:
Summary of Public Submissions on Cross Boundary Municipalities Laws Repeal and Related Matters Amendment Bill
Constitution Thirteenth Amendment Bill [B 24-2007]
Constitution Twelfth Amendment Act of 2005

Compressed audio recording or WAV Recording of meeting

SUMMARY
The Committee was briefed by the Departments of Justice and Constitutional Development and Provincial and Local Government on the reasons for the Constitution Thirteenth Amendment Bill, which was linked in turn to the Cross Boundary Municipalities Law Repeal Amendment Bill. In terms of the Constitution Twelfth Amendment Act certain cross boundary municipalities were done away with, and the provincial boundaries amended. Matatiele and certain other areas on the borders of Kwazulu Natal and Eastern Cape had been affected. After that Act was passed the constitutionality of the Act in relation to Matatiele was challenged, on the basis that, firstly, the functions of the Municipal Demarcation Board had been usurped by Parliament, and secondly, that there were procedural irregularities in that there had not been consultation by the provincial legislatures.

The Constitutional Court rejected the functions argument. It ordered that the local government elections scheduled for March 2006 should proceed, but that further argument be heard before it handed down a decision in August 2006 that indeed the parts of the Act relating to Matatiele were invalid because of procedural irregularities. However, this order of invalidity was suspended so that the new municipalities and functions continued to operate, but Parliament was given until February 2008 to correct the position. If Parliament decided not to proceed, or if one of the legislatures objected to the Bill, then the Speaker of that legislature must approach the Court for guidance on the consequences of the invalidity.

The Constitution Thirteenth Amendment Bill and the Cross Boundary Municipalities Laws Repeal and Related Matters Amendment Bill sought to re-enact the exact same provisions as the original Acts, and would only be passed after a full consultation process by both Eastern Cape and Kwazulu Natal legislatures. Although only Matatiele had been commented upon by the Court, it was felt prudent to re-enact all provisions dealing with other affected areas between those two provinces.

The Bills were tabled to and explained to the Committee. A summary of public submissions received by the Department on the Cross Boundary Bill was also tabled, which showed that six commentators were in favour of a move to Eastern Cape and three opposed to it. Service delivery and consultation issues were raised.

Members asked questions on the consultation processes and the possibility of joint consultations, the role of the Municipal Demarcation Board, and noted that at present the dispensation that had come into existence on 1 March was being maintained. The Committee felt it was desirable to ascertain the views of traditional leaders, even if there was no legal requirement to do so. The wording of Clause 1A of the Cross Boundary Bill was queried. It was noted that the public consultation process by the provinces should invite stakeholders specifically, make provision for assistance to people in making their submission, and include an education process. Members suggested that community radio be used for announcements, that issues of service delivery must be specifically addressed and that communication with communities must be backed up with real delivery. 

Constitution Thirteenth Amendment Bill [B24-2007]: briefing by Department of Justice (DOJ)
Mr Johan Labuschagne, Director, DOJ, tabled the Bill. He noted that in December 2005 the Constitution Twelfth Amendment Bill and the Cross Boundary Municipalities Bill were passed, and came into effect in March 2006. The Constitution Twelfth Amendment Act (CTAA) had amended the Constitution to do away with cross boundary municipalities and to amend the provincial boundaries as set out in the Constitution. Under that Act, Matatiele and certain other areas were to be transferred to the Eastern Cape and new municipalities were created. There was then a challenge to the constitutionality, in the case of Matatiele, arguing that the change of the boundaries was procedurally incorrect, and that Parliament had taken upon itself the functions of the Municipal Demarcation Board (MDB) that were reserved to the Board.

On February 2006 the Constitutional Court rejected the argument in relation to the reserved functions. It ordered that the local government elections scheduled for 1 March 2006 should proceed. It requested to hear further argument whether the part of the CTAA that changed the boundaries was passed in accordance with the procedural provisions of the Constitution. In August 2006 the Constitutional Court declared that part of the CTAA that transferred Matatiele to the Eastern Cape to be inconsistent with the constitution and therefore invalid. This decision was based on procedural defects, since it found that the provincial legislature of KwaZulu Natal (KZN) had failed to hold public hearings or invite comments on the transfer. However, the order of invalidity was suspended by the Court for a period of 18 months (until 18 February 2008) to allow Parliament to rectify the matter.

Mr Labuschagne stated that the Constitutional Court's order was formulated with reference to Matatiele only, since the application had been brought only for Matatiele. However, it could be argued that the procedural failure of the KZN legislature could also affect the other changes to its boundaries that had been made under the CTAA, and there could be a knock-on effect. Therefore it was felt that any legislative amendment that sought to address the defect for Matatiele, should also contain references to the other municipalities transferred at the same time to the Eastern Cape.

The effect of the suspension of the Order was to give Parliament time to set up a new amendment. The results of the elections would stand, and the new municipalities that had already been created would likewise continue in existence. Parliament now had to adopt the Constitution Thirteenth Amendment Bill (the Bill), which sought to address the defects. Only those provisions of the CTAA that referred directly to KZN and Eastern Cape transfers needed to be substituted, and exactly the same wording was being used. Therefore the Bill was in essence reaffirming all that the CTAA had contained. From a procedural point of view both Eastern Cape and KZN legislatures would have to hold public hearings and approve the terms of the Bill. There was some urgency, and the Bill would have to be passed by the end of the year, otherwise the areas would automatically revert to KZN.

Discussion
The Chairperson noted that the Bill would have to be dealt with by the Justice Portfolio Committee. There would be a joint meeting with this Committee on 14 August.

Mr P Smith (IFP) asked that copies of the judgment be forwarded to Members.

Mr Smith asked, in regard to the consultation process, whether the Department had given guidance to the provinces as to how they should consult, or whether any thought had been given to local referendums.

Mr B Solo (ANC) agreed that it was important to give assistance to the provinces to ensure that proper public hearings were held, and asked how specifically the process would be managed, to ensure that this was done in a calm and rational manner, and that there was a fully inclusive process.

The Chairperson observed that the Court had not commented on the type and quality of the consultation.

Dr Petra Bouwer, Executive Manager: Compliance, Department of Provincial and Local Government (DPLG) noted that the Department had visited the two provinces. The Court had given an indication that the nature and extent of consultation would depend on the circumstances, and had set out some possibilities. This judgment followed other similar court decisions on consultation. The rules of the legislatures themselves determined how consultation and engagement must take place. In KZN the rules required collective Committees to undertake consultation. The Department had suggested that the two legislatures should have joint public hearings, and then take their own decisions. Both Speakers of the two legislatures highlighted that any consultation should entail discussion of what areas would be released, and what would be received. There were some problems with holding individual consultations since there was some question whether the Eastern Cape legislature, for example, could consult with Umzimkulu, since it had been transferred out of its jurisdiction. The suggested joint process would facilitate these issues and reduce costs. He noted that no thought had been given to local referendums.

Mr Smith asked why government had taken the view that the same provisions should be re-enacted, and whether there had been any contrary arguments to the original proposal, especially since the Municipal Demarcation Board had held a different view to the CTAA provisions.

Mr Solo (ANC) asked if the Demarcation Board again had a role to play on this matter.

Dr Bouwer said that it was necessary for government to look practically at what was presently in existence. The effect of the suspension order was that the municipal institutions were already set up and running since March 2006. With a re-enactment in the same terms, but following correct procedure, this position could be maintained. There was no attempt to pre-empt what would come from the consultation process. There was no necessity again to involve the MDB.

The Chairperson asked if the Demarcation Board had a mandate to pronounce on any issues.

Dr Bouwer said that it was the mandate of Parliament to determine the provincial boundaries. The MDB mandate related to configuration of local government within the provinces. The MDB had been consulted on the effect that the alignment would have on the configuration.

Mr Smith asked what would be the result if the public comments indicated that the two provinces should in fact change what was in existence at present.

Dr Bouwer quoted from the Court judgment, which said that if Parliament decided not to proceed, or if a legislature objected to the Bill, then the Speaker of that legislature must approach the Court for guidance on the consequences of the invalidity.

Mr Solo asked what the current situation was with Umzimkulu, which municipalities it was currently linked to, and what province was responsible for support.

Dr Bouwer replied that as a result of the suspension order, the dispensation coming into existence on 1 March 2006 was maintained. The boundary changes as set out in the CTAA had been applied, so Umzimkulu fell within KZN. Services, budgets and equitable share had been re-aligned on that basis.

In reply to the Chairperson asking if the same would apply to Matatiele, Dr Bouwer confirmed that a similar situation applied to Matatiele. 

Mr M Swart (DA) asked what would be the effect of acceptance of the Bill upon the CTAA.

Mr Labuschagne replied that the CTAA had amended the Constitution, but only the part that was declared invalid was being replaced. The rest of the CTAA was standing.

Ms T Mwamitha-Shibulana (ANC) asked what would happen if the consultation process declared that Matatiele should remain in KZN.

Dr Bouwer replied that this was an important point. The consultations must be honest, and find out exactly the feelings of the people. If challenges raised were of an institutional nature, or related to service delivery, the correct response might be to address the service delivery issues rather than looking to change the boundaries. If there was not sufficient motivation given for any preferences to go with a particular province, then it was difficult for the legislatures to support those sentiments.

The Chairperson noted that the consultative process was vital, and the content of the consultation would determine the outcome.

Cross Boundary Municipalities Law Repeal Amendment Bill [B25-2007]: briefing by DPLG
Dr Bouwer said that because the Court had found particular provisions in the CTAA to be invalid the institutional arrangements for those areas were also invalid, and this of course included the provisions made  for establishment of reconfigured municipalities, transfer of personnel and so forth. However, the order of invalidity was suspended, and so in practice these municipalities were continuing to function. It was important therefore that all the provisions of this amendment Bill should match the provisions of the original Act, so that there was no inconsistency.

Dr Bouwer said that Section 1 to 5 of the principal Act had contained general powers The Schedules contained the linkages of the powers in respect of specific areas. All provisions relating to the affected areas were therefore reintroduced into the amendment Bill.

Clause 1A of the Bill had been inserted at the suggestion of the State Law Advisors, and was a kind of "footnote" that brought in reference both to the Constitution Thirteenth Amendment and the Cross Boundary Municipalities Laws Repeal and Related Matters Amendment Acts.

Clause 2 repeated those provisions found to be invalid, with reference to Umzimkulu, Sisonke, Alfred Ngo, Umzimvubu and Matatiele local municipalities. The only change was a reference on page 6 of the Bill, under paragraphs (c) and (d) correcting a typographical error relating to the allocation of numbers to Government notices.

Clause 4 re-enacted and re-applied the general provisions of the application of the principal Act.

Clause 5 noted that the Bill, once passed, must come into effect on the same day as the Constitution Thirteenth Amendment Act.

Discussion
Mr S Mshudulu (ANC) referred to the Memorandum on the Objects of this amendment Bill. He noted that the Matatiele issue was referred to, but no specific reference was made to the other areas, and this might be important for clarity.

Dr Bouwer noted that the reference to the Constitutional Court judgment could only refer to Matatiele, since it was in respect of this area only that the Court application was brought. However, paragraph 1.4 made specific reference to the knock-on effect of the judgment, and noted that the provinces were losing and gaining areas. All the areas between eastern Cape and KwaZulu Natal were noted under paragraph 1.4.

Mr Mshudulu noted that it would be necessary for the Portfolio Committee of Justice and the Select Committee on Security and Constitutional Affairs to comment on the Bill.

The Chairperson indicated that it although it would have been preferable to have a briefing that also included the Portfolio Committee on Justice and the Select Committee on Safety and Security, this had not been possible to arrange.

Mr Mshudulu noted that the State Law Advisors were of the opinion that it was not necessary to refer the Bill to the National House of Traditional Leaders (NHTL). However, he felt that it should be so referred and pointed out that other local government legislation had been referred to the traditional leaders as part of the community.

Ms Mwamitha-Shibulana added that last week the Committee had attended a conference where comments were made that municipalities and government were tending not to involve traditional leaders, and that there were clashes between councillors and traditional leaders that could have been avoided through proper communication. This was tending to undermine the role of traditional leaders.

Dr Bouwer said that the DPLG had specifically stated in the Traditional Leadership and Governance Framework Act [No 41-2003] that anything relating to customs should be referred to the NHTL. Even if legislation was not dealing with customs, it was generally accepted that in the public engagement process there would be consultation with the traditional leaders in the affected areas. These formal procedural requirements would stand.

Mr M Nonkonyana (ANC) did not believe that this legislation had no bearing on customary issues. In Matatiele there were many people practising initiation ceremonies, which was a custom in Eastern Cape, but not in KZN. In Umzimkulu there were headmen, according to the customs of the Eastern Cape, but the custom of headmen did not apply in KZN. Therefore the transfer would clearly have an effect on traditional institutions, and on land. He suggested that this legislation should be referred to the NHTL. The views of the more marginalised people would also be addressed in this process.

Mr Theo Hercules, State Law Advisor, Office of the Chief State Law Advisor, noted that both Bills gave effect to the Constitutional Court judgment in the Matatiele application. The comment on the NHTL was given by the State Law Advisors following the strict application of the law that there was no direct reference in either Bill to customary matters, and therefore it was not strictly necessary to consult with the NHTL.

The Chairperson felt that consultation with traditional leaders could enhance the process.

Mr Smith asked if there had been any feedback on the proposals to have joint public hearings

Mr Labuschagne responded that he had received a commitment from the Speaker of the Eastern Cape legislature that she would contact her counterpart in KZN after the DPLG's meetings had been concluded. The Department had only met with KZN the previous week. The two legislatures' speakers would therefore be meeting to determine a way forward.

Mr Nonkonyana noted that all Members of parliaments could play a constructive role in the consultation process, and should not try to build political mileage out of the issue.

Mr Mshudulu asked whether there was not a simpler way of wording Clause 1A.

Dr Bouwer said that the Department would be happy to look again at the wording, but that these words had been used to indicate that the Acts must be read together in the widest interpretation.

Public submissions received by the Department on the Cross Boundary Municipalities Laws Repeal and Related matters Amendment Bill: briefing by Department of Provincial and Local Government
Mr Mayron Peters, Executive Manager, Local Government Institutional and Administrative Systems, briefed the Committee on the public submissions that had been sent to the DPLG on the this Bill. The Bill was published for public comment on 18 May 2007. Nine institutions and one individual had submitted comments. In summary, six institutions had supported the Bill, three were against it, and one was critical of the process. The most consistent complaint was lack of consultation, and lack of opportunity to address the legislature.

The Matatiele Local Municipal Council said that the Council had decided that Matatiele should remain in the Eastern Cape, and had submitted a petition in support of its decision.
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The Matatiele / Maluti Mass Action Committee, comprising a number of individual organisations of a diverse nature, opposed Matatiele being in the Eastern Cape, claimed that there was wide support of its decision, demanded the right to public involvement from the KZN legislature, and demanded good reasons for the  move. They claimed that people had a right to live where they chose, and quoted the Constitutional Court ruling, saying that the legislatures had not been transparent and accountable. They said that the Demarcation Board had found no reason to move Matatiele to the Eastern Cape and therefore requested that the Bills be withdrawn.

The Community of Matatiele felt that the boundaries were decided based on the ethnicity and customs, and said the community wanted to be served by KZN. It claimed that services were not being provided by Eastern Cape, and that the government offices in KZN were only two hours away from the community, whereas those in the Eastern Cape were seven hours distant.

CONTRALESA submitted that Matatiele should be one municipality under the Eastern Cape.

Ward 21, Matatiele Local Municipality, said that they had consulted the communities, who supported Matatiele being under Eastern Cape.

The Eastern Cape NGO Coalition (Alfred Nzo) supported the incorporation into Eastern Cape, and stated that these communities had experienced many hardships and the incorporation could impact positively on service delivery.

The ANC Youth League supported the incorporation into Eastern Cape. They claimed that the rural areas around Matatiele were all linked economically. The Eastern Cape administration had made an effort to visit and consult with communities in the area.

The Matatiele Youth Council supported the Bill and incorporation into Eastern Cape, which had been visible in the area, and also commented that the administration of the Eastern Cape had shown willingness to effect change and have public participation opportunities.

The South African Council of Churches had an ambivalent view. It submitted that the Bills were dealing with technicalities. Despite increased funding to Matatiele, it was unknown how people would be affected, and they queried what projects would result. The Government should devote more time to public participation and listen to community consensus.

Mr Peters said that the Bill was aimed to address the defect of insufficient consultation. The institutional matters raised were not insurmountable. He noted the objections about the distances, but said that in the Northern Cape, when areas of the Kalahari had been absorbed, the administration had decentralised some offices to move them closer to the communities, and this was a possible way to deal with some of the objections.

Discussion
Mr Mshudulu suggested that engagement that specifically invited all stakeholders would be useful, especially if the public participation processes were held at different points, and that lists of attendees should be noted.

Mr Solo noted that a consistent issue had been the distances to access provincial services. These needed to be addressed clearly. There was underdevelopment in that area, and poor people could not travel so far at such great cost. He asked to what extent DPLG was preparing to ensure that facilities were set up closer to the communities.

The Chairperson noted that some consultations had been held, and the Committee should be looking at how to take the process forward. The four Chairpersons in the National Assembly and National Council of Provinces had written to the provinces, sending the submissions, and calling on them to conduct the public hearings.

Mr Peter responded that DPLG had already had discussions with the Speakers of the two provinces, had made these suggestions and received new suggestions. It was proposed that the public hearings should be advertised now. The advertisement should specifically state that anyone needing assistance should approach the administration, which would then, as far as its finances allowed, attempt to assist. The notices would be translated, and translators would be on site for people at the public hearings. There would also be a proactive education programme in the communities. Good security would be provided during the public hearings, so people felt confident to attend. The proceedings would be minuted in detail. During the proceedings, there would be an explanation of what the process of both external and internal consultation meant, and there would also be the possibility that stakeholders could be invited to address the legislature.

On the issue of services, it was difficult for Mr Peters to remember statistics, but he noted that the budgets had been realised and sufficient provision was made in the budgets. In Eastern Cape this would include roads, infrastructure and Municipal Infrastructure Grant (MIG) projects. There were 113 MIG projects in these areas, so access was being provided. In addition Thusong Centres (formerly known as Multi-Purpose Community Centres – MPCCs) were planned, being run by the Government Communication and Information System, in partnership with the Department of Public Service and Administration, to allow people to receive a range of services. The Department had met the previous day to confirm that it would continue to mobilise resources to the cross boundary municipalities, which would include Matatiele. The provinces would report back to DPLG by month-end. A service delivery profile would be developed for Matatiele to support the work that the Portfolio Committee on Justice was doing on the Bills.

Mr Solo noted that there needed to be special focus and attention on the issues raised, noting that each area was differently affected and needed to receive individual attention. He was happy to hear that there would be education. He enquired whether the DPLG would use the community radio stations. The perception of the people that government was keeping back certain information, must be turned around.

Ms Nwamitha-Shibulana noted that there was a problem with district and local municipalities' delivery of services. Communication with communities must be backed up with real support and actual delivery.

Mr Peter noted, on decentralisation of services, that a suggestion had been made to the Speakers of the legislatures that representatives from provincial departments must be present at the public hearings to hear and note problems of service delivery. The departments should then be able to draw up an action list instantly. There was little point in only the legislative committees being present, as although they could certainly facilitate service delivery, they were not primarily responsible for it.

The Chairperson re-stated the commitment of this Committee to the process. The Constitutional Court had not made any reference to the process in Parliament, although it was an important part of the consultation process. He hoped that the deadlines would be met.

The meeting was adjourned.

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