Court's decision on Municipal Structures Act; Section 185 Commission

Meeting report

PROVINCIAL AFFAIRS & LOCAL GOVERNMENT PORTFOLIO COMMITTEE
19 October 1999
SECTION 185 COMMISSION; CONSTITUTIONAL COURT'S DECISION ON THE MUNICIPAL STRUCTURES ACT: BRIEFING

Documents handed out
1 Department document on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, including what the Constitution demands, what was discussed at the 24 September 1999 conference and a copy of the draft Bill.  [email [email protected] for these documents]
2 Proposed amendments to the Municipal Structures Act and Department memorandum on the objects of the amendments. [attached to end of minutes]

SUMMARY
The Committee was briefed on what has been done to establish the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (the 'Commission'). The Commission is a constitutional requirement under sections 181, 185 and 186. Following much consultation and two conferences, a Bill has been drafted. However Mr Sizani stressed that this was merely a compilation of all the information that has been collected and remains just a discussion document. Following more consultation it is hoped that a new draft will be tabled by the end of January 2000. Questions revolved around: the Commission's costs, functions and composition; the exact role of Parliament in the Commission; the Commission's role in establishing and recognising cultural councils and if this will involve financial assistance.

The planned discussion of the Disestablishment of the Local Government Affairs Council Bill was postponed so that the implications of the recent Constitutional Court judgement on the Municipal Structures Act could be discussed. The committee was briefed on what the court had determined and the amendments the Department is proposing. Only five sections of the Act are open for discussion and amendment, the rest of the Act will not be re-opened. 

MINUTES
Section 185 Commission
The presentation was made by Mr R Sizani (Deputy Director-General: Constitutional Development):
The Constitution states the objects behind the Commission, including:
- promote the rights of communities.
- promote and develop peace, friendship, humanity, tolerance and national unity.
- recommend the establishment or recognition of cultural or community councils.

The Commission will reflect the community and gender composition of South Africa.

During 1998 both Parliament and the national executive insisted that the Commission must be established. This insistence was reiterated in the President's address of 25 June 1999. A consultative process was initiated by the National Assembly and the NCOP on 4 August 1998 and public hearings were soon held in the provinces. On 24 September 1998 a conference was held to focus on:-
- What the Constitution demands of the Commission.
- What the Commission will cover.
- Producing a consultative and discussion document.
- Receiving feedback on what was being done.
- Consulting other institutions supporting constitutional democracy, the 'Chapter Nine' institutions.

The eventual result of the conference was the preparation of a draft Bill. This includes the objectives set out for the Commission in sections 185 and 186 of the Constitution. It takes account of discussions held with the public, Chapter Nine and other institutions, plus the experiences they have had. The Department also developed papers on possible models for the Commission, its mandate, its linkage with other institutions and the establishment of cultural councils.

A second conference was held on 24 September 1999 to discuss all these documents. Three hundred delegates from various institutions attended. The draft Bill they discussed has been made available to the committee but it must be stressed that this is only a draft and it is expected that much work still needs to be done. The draft is merely a compilation of all the information that has been collected through the consultation process. It is not an end point but is still a discussion document.

The Bill's preamble reflects the need for the Commission. It will be a key tool in resolving the conflicts of the past, working to make South Africa's diversity a national strength and not a national problem.

There are various important clauses within the Bill that cover the following:
- How communities will be identified and how organisations from these communities can apply for recognition.
- What is meant by the Commission's name and what it will include / exclude.
- The primary objectives of the Commission.
- The composition of the Commission. This will include a chairperson who is completely neutral and not associated with any community. There will also be between 11 and 17 members, the minimum of 11 reflecting the number of official languages that will be represented.
- The functions and powers of the Commission. These arise from the Constitution and essentially revolve around conflict resolution. It is possible for the Commission to enlist the help of other chapter nine bodies to do this.

One of the possible aspects of the Bill would be to set up an annual national conference (still held on 24 September) to provide a forum for discussion on the Commission work. This could operate like a board of directors, checking how far the Commission had got with managing diversity and protecting the rights of communities. It could also review the mandate of the Commission on an annual basis. Further the Constitution sets out that the Commission must make recommendations on the establishment or recognition of cultural councils yet does not say to who, this may be a role that the conference could play. The Bill makes it clear that the conference, like the Commission should be dominated by representatives of communities.

Even though a bill has been drafted the development of cultural councils remains unclear. The Constitution states, under section 185(1)(c), that the Commission should;
' ..recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.'
Sections 37 and 38 of the draft Bill state the need for more submissions on this. Section 39 (endorsed by the 1999 conference) states the intention to ensure cultural councils are self-funded but also accepts that some communities are not empowered to do this and it must be worked out how they can be assisted.

The 1999 conference generally accepted the draft Bill and agreed that progress must be made on the production of a final Bill. It outlined that work and consultation is still needed on:
- Accommodating knowledge on communities within the Commission structure.
- Ensuring the direct participation of communities.
- Address the issue of cultural councils.
- Decide what the main cultural, religious and linguistic communities are.
- Decide on the exact relationship the Commission will have with other chapter nine bodies.
- Decide on whether the Commission will have a relationship with an annual consultative conference and if so, what this will be.

Various working groups are currently working on this issues, focusing especially on what the exact mandate of the Commission will be.

The 1999 conference outlined 'the way forward'. A small conference committee is to be set up to assist the Department in its work on the Bill and in the process of establishing the Commission. The committee will have 15 to 20 members and the Department is currently working out a criteria to choose these from the 124 nominations received. This committee should be finalised by next week and will start its work on 1 November. Once the Bill has been re-drafted an interim conference is planned to discuss it. Consultation much be complete by the end of November so that the Bill can be tabled by the end of January 2000. There is now some urgency to get the Commission up and running because of the volume and effort that has already been committed to the process.

Discussion
Mr Y Carrim (committee chair, ANC) opened the discussion by reiterating that the documentation handed out was a draft Bill and this must be related to the process set out by Mr Sizani at the end of his presentation. Mr Carrim felt that the discussion could be structured along the following issues:
- The provisions made in the Constitution.
- How communities are going to be defined.
- How religion especially is going to fit in to definitions - consider that approximately 95 per cent of the population could be classed as Christian of some sort.
- Cultural councils. The committee must debate what their role is to be and whether they even need to exist should the Commission take on a larger role as some groups are proposing.
- The structure and composition of the Commission.
- The Commission's relationship with other institutions.
- The process of establishing the Commission - the possible role that national assembly and NCOP committees may play in this.

Ms R Southgate (ACDP): Why has the draft bill being brought to this committee? Should it not go to Justice and Constitutional Affairs or to Arts, Culture, Science and Technology?
Mr Carrim: This committee was previously the committee for Constitutional Development and although the committee has changed the Department has not.. and remains responsible for constitutional issues. Due to simple reasons of staffing and operational efficiency it has been decided that for the time being the constitutional issues will still be run by the Department. It is possible that this Bill could go to another committee or to the Deputy President's Office.

Ms R Southgate: It seems likely that the Commission will overlap will the Human Rights Commission. Is the Commission really necessary if we look beyond the fact that the Constitution demands it? Is it not merely a waste of valuable money?
Mr Carrim: The Constitution demands the Commission so we must either have it or delete the Constitution. I think that we must consider the importance of various sections of the Constitution in allowing for the peaceful times that have followed 1994. Crucial in the transitional process was the agreement territorial and cultural self-determination would be provided for. This was a key motivation behind the provincial system and obviously behind sections 185 and 186 of the Constitution. It was and is clear that various groups need a way to be able to express their identities and so the Commission is a necessity regardless of cost. Cost is more than a mathematical formula where such important and sensitive issues are at stake. Further the proposed Commission will be very modest in staff - especially full time staff and is actively seeking to work together with established institutions.

Ms R Southgate: What will the Commission cost?
Mr Sizani: We have tentatively costed the Commission and believe that it would have cost approximately R3million this year so increasing - with inflation - to R3.2million next year. This has been budgeted for, R3.2million has been set aside for the Commission next year and we can still request more should this prove insufficient.

Ms R Southgate: Will there be a role for this committee once the Bill has been passed?
Mr Sizani: There is no role provided for this committee in - for example - the appointment of the Commission. However the committee has the chance to set out a role for itself during the drafting process. The Commission is accountable to parliament but exactly how this will operate is unclear. This could be an area for the committee to play a role. The appointment of the Commission will be done by the president as the Bill stands but again this is open to change.

Mr P Smith (IFP): If the Bill is tabled as planned at the end of January or start of February, does this mean that the Commission will be established in mid-2000?
Mr Sizani: We predict that it will be established in June.

Mr P Smith: The Commission will have 11 to 17 members. The minimum of 11 relates to the number of official languages that each must be represented. However if you represent each language you must represent each religion or each religious denomination and how can you cater for each cultural group? Further if you only represent official or main groups do you get a Commission that is fully representative of South Africa?
Mr Sizani: This question greatly relates to what we mean by a 'community' and what criteria we will use to define one. We could set up a huge Commission especially as we do not want to exclude any group. However it is unlikely that we could accommodate all or that such a large Commission would be manageable. This Commission must be reasonably sized and this means that we may accommodate knowledge or have doubling up of representatives if we cannot reproduce all communities within the Commission.

Mr P Smith: What is a community. Does each person have to be defined as being part of a community? Do you have to identity with a certain community to be part of it and for it to exist? For example I am a white English-speaking South African but I do not feel that I belong to a white English-speaking community or that I can actually identify with any particular community. Could the Commission not be for the protection and promotion of linguistic, religious and cultural 'rights' and not for the rights of linguistic, religious and cultural communities?
This question was not fully understood by Mr Sizani who gave the following answer: This boils down to how we are going to define communities. This is a matter still to be discussed in detail and many clauses, especially section 32(5) on self-determination, need to be developed. The rights base of communities is catered for by sections 15, 30 and 31 with the aim of promoting and protecting the rights of both individuals and communities.
Mr Carrim made the following comments, stressing that they formed his view and not necessarily those of his party. He believes that this is not a commission for minorities but for communities, both large and small. It is likely that the Commission's numbers will not be all inclusive. However this Commission would still perform the valuable function of providing a cultural expression within the nation building process. It cannot hope to recognise all the possible communities that could exist because communities cannot be simply defined by religion or language or culture alone. Further different people identify themselves in different ways and by different things. Further it is possible that people will not want to identify themselves with a community. These people must have the right to disassociate themselves and must not be forced to be identified or categorised due to their background if this is not where they now belong.

Mr P Smith: The Commission is accountable to parliament but will this be direct or via the Minister?
Mr Sizani: There is an established route of accountability. The Commission should not be an appendage of the Department and there are constitutional rules on this. Instead accountability will be direct to parliament but the exact reporting process will only be finalised once this legislation - that merely decides for the establishment and administration of the Commission - has been passed.

Mr P Smith: Can you offer clarity on the Commission's exact relationship with other institutions that support democracy or that promote and protect rights? My concern is that this Commission deals with collective rights of communities. However some of the communities the Commission supports may endorse practices that are at variance to the Bill of Rights. Is it possible that conflict could occur between the Commission and - for example - the Human Rights Commission who promote individual rights?
Mr Sizani: I accept the point you are making that tension could arise. However I believe that the Commission will compliment the work of other bodies, especially the Human Rights Commission. The Constitution recognises the possible overlaps section 185(3) legislates for this. On the issue of conflict section 31(2) clearly states that individual rights as outlined in the Bill of Rights will be promoted above those of communities.

Ms M Verwoerd (ANC): Does either the Constitution or the Bill provide for the possibility of provincial commissions? The Western Cape has recently passed an Act that legislates for a cultural commission, how does this fit in with what we are working towards?
Mr Sizani: The Constitution provides no guidelines on provincial commissions, only cultural councils are recognised. However the Constitution of the western Cape may provide for how their commission is to interact with national bodies, we will have to look at this.
Mr Carrim also referred Mr Sizani to the Kwa-Zulu Natal Constitution that was not passed saying that there was something on a provincial cultural commission in this. He also said that there would be provincial input in to the Bill through the NCOP and the provincial legislatures, although how this will occur remains unclear.

Both Mr Smith and Mr Carrim expressed the opinion that the Commission's name should be reconsidered. 'The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities' is cumbersome. Mr Carrim suggested that 'Cultural Rights Commission' was a possibility but accepted that there would be disagreement on this. Mr Smith then suggested 'Communities Rights Commission'. The Department said there would be consideration of a new name or a possible abbreviation.

Ms G Borman (DP), Ms R Southgate(ACDP) and Mr F Van Deventer all asked for clarity on the funding of  cultural councils and how communities might be assisted in setting up councils.
Mr Sizani: This is not finalised. The ideal is that no funding will be needed. In many cases cultural councils already exist, are fully funded and would only want recognition form the Commission. The most obvious example of this would be the local councils of the Afrikanerbond. However it is recognised that many councils will need assistance and how this will be given still needs to be worked out, it is possible that there could be some sort of means test. The ultimate object will be that they will eventually become self-funded. This is a matter still under consultation.
Mr Carrim wanted it to be made clear that it would not be the government or the Department who would decide the funding methods of cultural councils, it would be the Commission itself that would decide. There is a whole debate surrounding cultural councils and whether we either want or need them. The Constitution says that the Commission can recommend the establishment or recognition of councils but whether and how they do does not form part of this legislation. On the issue of funding Mr Carrim suggested that if the government was concerned about what it could afford or justify giving it should simply not fund any councils. However at the same time could the government and the Commission afford to ignore the needs of marginalised communities who would need funding to establish councils?

Mr Carrim raised the issue of religion asking for comments from both the committee and the Department. He wondered whether religion should be represented by the Commission because this would tie religion to the state. He also wondered exactly how it would be decided which religious groups would be represented on the Commission.

Mr Carrim raised the issue of parliament's role in the Commission, again requesting comments from both the committee and the Department. He had initially thought that parliament must have some sort of role but increasingly he has become less convinced of this. The setting up and running of the Commission is very sensitive because of the issues and communities being dealt with. Who is to say what is a community and how can a truly objective set of criteria to define communities by be developed? Maybe it would be better for parliament to be as little involved as possible?
Mr C Mulder (FF) responded that if the Commission is to consist of academics who hold knowledge on communities but do not actually represent them, then parliament should be involved. However if the Commission is directly representative of communities then parliament should avoid involvement.

Municipal Structures Act - Constitutional Court Judgement
Mr F Louw from the Department briefed the committee on the Constitutional Court judgement. The provincial governments of Kwa-Zulu Natal and the Western Cape had challenged 61 sections of the Act. The challenges fell in to two main areas. Firstly that it encroached on the powers of provincial government, especially with regards to section 155(6) of the Constitution which gives provincial government the right to establish municipalities. Secondly that it encroached on the internal procedures of municipal councils as outlined in section 160 of the Constitution. However the challenges failed on these fundamental issues. The decision of the Constitutional Court was to make five clauses invalid that fall in to four main areas.

Sections 4 and 5 - Metros
It was judged unconstitutional for the minister to apply the Bill's criteria and determine whether an area should be a Metro municipality or whether an area should have both District and Local Municipalities. This power has been transferred to the Demarcation Board. It was also judged unconstitutional for the minister to declare the nodal points of Metros, this power is effectively transferred to the Demarcation Board. Section 4 has been amended and section 5 has been deleted.

Section 6(2)
If an area within a district has insufficient capacity to support a local council it becomes a district management area. Section 6(2) gave the power to determine district management areas to the Minister using the recommendations of the Demarcation Board. However as district management areas affect municipal boundaries is was declared unconstitutional for the minister to decide where they would be. This clause has been suspended for a year and during this period district management areas will be determined solely on the Demarcation Board's recommendations.

Section 13
This section gave the minister the power to determine guidelines to assist local government MECs in deciding which type of municipality would be appropriate for an area. However even the providing of guidelines was deemed unconstitutional and this section has been deleted so that the decisions of local municipality type rest fully with MECs.

Section 24
The term of municipal councils was to be no more than five years and elections could be determined by the minister at any time within this five year period. However the judgement stated that power to determine elections should rest with parliament and terms will now be set five year periods.

The judgement essentially took powers away from the minister and gave them to the Demarcation Board, MECs or parliament. The Department has chosen to take a cautious approach. It has made amendments to comply with the judgement and even totally deleted sections 5 and 13. The Bill will be gazetted today (19 October), will go to cabinet tomorrow (20 October) and will hopefully reach the committee by 29 October.  Mr Carrim stated that if this went to plan then it was possible the committee may sit on 1 November and 2 November, during the constituency period. He made it clear that the Bill itself was not being re-opened for discussion, only these sections would be looked at.

Questions
Ms M Verwoerd (ANC): What are implications of the court decision on the process of local government reform? Will the process be significantly held back?
Mr Carrim: The press has speculated that there may be a delay of two weeks but  Dr Sutcliffe has stated that there will be no significant effect on the demarcation process. The judgement affects only a few minor issues that the Department is ready and willing to amend. Most of the issues that were debated at length by this committee were deemed constitutional.

Appendix 1:
Proposed amendments to the Municipal Structures Act and Department memorandum on the objects of the Act:
 
BILL
To amend the Local Government: Municipal Structures Act, 1998, in order to vest the power to determine whether an area must have a single category  A municipality or whether it must have municipalities of both category C and category B in the Municipal Demarcation Board; to vest the power to declare a part of the area of a category C municipality as a district management area in the Municipal Demarcation Board; to determine the term of municipal councils; to repeal section 13; and to provide for matters in connection therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

Substitution of section 4 of Act 117 of 1998
1.         The following section is hereby substituted for section 4 of the Local Government:          Municipal Structures Act, 1998 (hereinafter referred to as the principal Act):

"Application of criteria
4.         (1)   The [Minister Demarcation Board must  apply the criteria set out in section 2 and determine whether an area in

terms of the criteria must have a single category A municipality or whether it must have municipalities of 1,oth category C and category B; and

(1)       determine the boundaries of the area in terms of the Demarcation Act.

(2)       The [Minister] Demarcation Board may determine that an area must have a category A municipality only after consultation with the Minister.

[The MEC for Local government in the province concerned, SALGA and organised local government in the province].".

Repeal of section 5 of Act 117 of 1998
2.         Section 5 of the principal Act is hereby repealed.

Amendment of section 6 of Act 117 of 1998
3.         Section 6 of the Principal Act is hereby amt~ded by -

(a)       the substitution for subsection (2) of the following subsection:

"(2)   [The Minister, on the recommendation of the Demarcation Board and after consulting the MEC for local government in the province concerned] The Demarcation Board may declare a part of an area that must have municipalities of both category C and category B as a district management area if the establishment of a category B municipality in that part of the area will not be conducive to fulfillment of the objectives set out in section 24 of the Demarcation Act."; and

(b)       the substitution for subsection (3) of the following subsection:

"(a)   [The Minister, on recommendation of the Demarcation Board and after consulting the MEC for local government in the province concerned The Demarcation Board may by notice in the Government Gazette withdraw the declaration of an area as a district management area.

(b)       When such declaration is withdrawn, the MEC for local government in the province concerned must, in accordance with any boundary determinations or re-determinations of the Demarcation Board and with effect from the date of the next election of municipal councils -

(i)         establish a local municipality for that area in terms of section 12; or

(ii)        include that area into another- local municipality in terms of section [16] 17".

Repeal of section 13 of Act 117 of 1998
4.         Section 13 of the principal Act is hereby repealed.

Amendment of section 24 of Act 117 of 1998
5.         Section 24 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) (a)            The term of municipal councils is no more than five years as determined by [the Minister by notice in the Government Gazette], an Act of Parliament calculated from the day following the date or dates set for the previous election of all municipal councils in terms of subsection (2);

(b)       The Act of Parliament contemplated in paragraph (a) shall be enacted not later than 31 August 2000.".

Short title
6.         This Act is called the Local Government: Municipal Structures Amendment Act,  1999.

MEMORANDUM ON THE OBJECTS OF THE LOCAL GOVERNMENT:
MUNICIPAL STRUCTURES AMENDMENT BILL, 1999
The object of the Local Government: Municipal Structures Amendment Bill is to give effect to the judgement of the Constitutional Court in the cases:

Executive Council of the Province of Western  Cape versus the Minister for

Provincial Affairs and Constitutional Development and Another (Case CCT 15 of

1999); and

Executive Council of Kwazulu-Natal versus the President of the Republic of South Africa and Others (Case 18 of 1999).

In its judgement the Court found that sections 4, 5, 6 (2), 13 and 24 (1) of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), were unconstitutional and accordingly declared those sections invalid. The declaration of invalidity of section 6 (2) was suspended for one year.

Section 4 of the Act allowed the Minister responsible for local government to apply the criteria set out in section 2 in order to determine whether an area should have a category A municipality or whether it should have municipalities of both category C and B. The Court found that the Constitution by necessary implication vests this power in the Demarcation Board. Clause 1 of the Bill accordingly re-aligns section 3 with this constitutional requirement.

Section 5 of the Act enabled the Minister to declare an area that in terms of the criteria must have a category A municipality as a metropolitan area, and to fix nodal points within the area around which boundaries must l)e drawn. As the power to determine the category of the area and the power to determine the boundaries of the area are constitutionally both vested in the Demarcation Board which the Board must exercise as components of the process of boundary determination, there appears to be no need for the formal declaration of such areas as metropolitan areas as either before or after the determination of the outer boundaries. Clause 2 of the Bill consequently proposes the deletion of section 5.

Section 6 (2) of the Act provided for the declaration by the Minister of district management areas within category C municipalities where the establishment of a local municipality is not feasible. The Court held that the establishment of district management areas impacts on the boundaries of municipalities which is a function that constitutionally must be performed by the Demarcation Board. Clause 3 of the Bill gives effect to the Court's ruling by vesting the power to declare district management areas in the Demarcation Board.

Section 13 of the Act which allows the Minister to issue guidelines to MECs for local government to assist them in choosing the type of municipality that would be appropriate for a particular area, was declared invalid by the Court on the ground that it impinges on the power of provinces to decide on the types of municipality to be established in the province. Clause 4 of the Dill accordingly repeals this section.

Section 24 (1) of the Act allowed the Minister to determine the term of municipal councils by notice in the Government Gazette. The Court ruled that this section constituted an impermissible delegation of parliamentary power and that in terms of the Constitution only Parliament could fix the term. To rectify the matter clause 5 of the Bill amends section 24 (1) by stating that the term of municipal councils will be five years calculated from the day following the date or dates set for the previous election of all municipal councils.