Local Government: Municipal Electoral Amendment Bill [B27-2010]: public hearings
Chairperson: Mr B Martins (ANC)
Date of Meeting: 13 September 2010
The Committee was presented with the B versions of the South African Citizenship Amendment Bill and the Births and Deaths Registration Amendment Bill which included amendments approved in the previous week’s sittings.
The South African Local Government Association submitted its comments on the Local Government: Municipal Electoral Amendment Bill [B27-2010]. The South African Local Government Association expressed its discontent at not having been consulted during the drafting process of the Bill. The Association alleged that, by virtue of the admission by the drafters of the Bill that they had not consulted any institutions, the Bill had been entered into the parliamentary process unlawfully. The Association outlined the importance and recognition given to Local Government as a sphere of Government and the importance of consultation where legislation would be directly targeted at that sphere.
The South African Local Government Association proposed, with reference to Clause 1 of the Bill, amendments which would allow for the printing of an election timetable after the announcement of an official election date allowing stakeholders to prepare accordingly for an election. The Association proposed, with reference to Clause 9 of the Bill, that Section 64 of the Local Government Municipal Electoral Act 2000 (Act No. 27 of 2000) be amended to clarify when an elected candidate assumed the title of councillor and when he or she was eligible to receive remuneration as a councillor. The Association further sought clarity on who declared when a councillor became a councillor - the Chief Electoral Officer or the Independent Election Commission.
The Independent Electoral Commission informed the Committee that the issues raised by the South African Local Government Association with regard to consultation were dealt with in the Local Government: Municipal Structures Act 1998. The Independent Electoral Commission admitted that it should endeavour to improve consultation with the South African Local Government Association in future.
Members sought clarity on the proposed amendment on when an elected candidate officially became a councillor. They sought clarity on why consultation had not taken place between the Independent Electoral Commission and the South African Local Government Association. Comment was made on the usefulness of such interaction. The necessity of the Bill was commented on. Clarity was sought on the need for municipal candidates who were of a certain calibre and quality.
Before the public hearings began, Mr Gideon Hoon, Principal State Law Advisor, notified the Committee of the B version of the South African Citizenship Bill and the Births and Deaths Registration Amendment Bill. The B versions included the changes which members had approved in sittings held the previous week. The Bills were to be debated in the National Assembly on Thursday, 16 September 2010.
Mr Jaco De Bruyn, Head of Water Services and Sanitation: South African Local Government Association (SALGA)
South African Local Government Association Submission
Advocate Reuben Baatjies, Acting Executive Director of Governance: SALGA, presented the Committee with SALGA’s dissatisfaction at not being consulted on the Local Government: Municipal Electoral Amendment Bill. He emphasised that the Association was unhappy with not being consulted by the Independent Electoral Commission (IEC) during the drafting of the Bill. In a covering letter in the Association’s submission, SALGA proposed that the Bill be withdrawn from the parliamentary process pending the completion of consultation of local government.
SALGA noted that it had not been consulted when the Bill was still in the drafting process. The Association highlighted that local government was a sphere of government and thus needed to be taken seriously enough to be consulted when legislation affecting it was being drafted. SALGA emphasised that consultation and communication were vital for avoiding disputes around legislation affecting local government. The Association alleged that, by virtue of the admission by the drafters of the Bill that they had not consulted any institutions, the Bill had been entered into the parliamentary process unlawfully. The Association highlighted that the comments it had to make on the Bill were from its lawyers and not the views of its municipal constituents, as they had not been consulted in the drafting of the Bill.
SALGA proposed, with reference to Clause 1 of the Bill, that a comprehensive election timetable be published leading up to an election, once an election date had been declared. This would amend Section 11 of the Local Government Municipal Electoral Act 2000 (Act No. 27 of 2000) to allow for stakeholders to have time to make necessary preparations leading up to an election. The Association proposed, with reference to Clause 9 of the Bill, that Section 64 of the Local Government Municipal Electoral Act 2000 (Act No. 27 of 2000) be amended so that it might clearly demarcate when a candidate who had been elected was considered a councillor and when he or she was considered eligible to receive remuneration for being a councillor. The Association highlighted the confusion over whether the Chief Electoral Officer declared the election of a councillor or if the Electoral Commission did so.
The Chairperson thanked SALGA for its presentation for its input on the Bill. He asked the Independent Electoral Commission representatives present to respond to the claims of not consulting SALGA on drafting the Bill. He said that it was undeniable that SALGA had direct responsibility over the sphere of local government and that he assumed that consultation would have taken place between SALGA and the IEC. He commented that there were time constraints with regard to the Bill due to the imminent coming of local government elections next year and due to the Bill’s needing to go through the National Council of Provinces (NCOP) along with the National Assembly (NA). He lamented the absence of a parliamentary law advisor to give input on the Bill which he considered important.
Mr Stefanus van der Merwe, IEC Commissioner, responded that, on the matter of publishing the Bill before consulting SALGA, the minister concerned and the State Law Advisors were responsible for introducing bills to Parliament and that was no fault of the Commission’s. He said that in the IEC’s view, the Bill did not contain anything which would adversely affect the status, institutions, powers and functions of local government. He said that the State Law Advisors and Parliamentary Law Advisors had classified the Bill as a Section 75 Bill meaning that it would have no direct effect on local government. He said in response to SALGAs proposal, with reference to Clause 1 of the Bill, to amend Section 11 of the Local Government Municipal Electoral Act 2000 (Act No. 27 of 2000), that it would not be helpful to introduce a specific date by which the Commission would have to have published an election timetable; the IEC would carry this out in a timely faction and allow stakeholders to have a chance to make preparations for an election. He said that the other issues raised by SALGA were addressed in the Constitution or the Local Government: Municipal Structures Act of 1998.
The Chairperson asked the Department representatives whether they had input to provide on the Bill.
Advocate Deon Erasmus, Chief Director of Legal Services: Department of Home Affairs, said that the Department supported the views voiced by Mr Van der Merwe and held the view that the Bill did not affect the status, institutions, powers and functions of local government. He said that the issues raised were dealt with in the Local Government: Municipal Structures Act of 1998.
The Chairperson said that the SALGA submission might have been unnecessary had the IEC and the Association held consultations on the Bill. He said that it was disconcerting that communication and consultation on the Bill had not taken place between the two organisations.
Mr M Mnqasela (DA) voiced his contentment with Mr van der Merwe’s input. He said that in his view, the Committee should not get involved with the problem of consultation raised but should focus on the Association’s presented submission on the Bill. He said any other issues should be dealt with in the proper structures outside of the Committee.
Ms A Lovemore (DA) sought clarity on conditions under which consultation between organs of state, stakeholders and spheres of Government were to take place.
Adv Erasmus replied that SALGA was not considered an organ of state by the Department, thus it was not necessarily obligatory for consultation to take place. He added that it was important to know what had happened during the drafting process of the Bill with regard to consultation by the IEC and stakeholders.
Mr Van der Merwe responded that the Commission often consulted with stakeholders after the holding of an election to assert the pros and cons of that election. He said that in carrying out that consultation, the Commission then developed ideas to improve the election process and those ideas went into the drafting of the Bill. He said that after the 2006 elections and the national elections the IEC developed ideas to improve the election process and ran those ideas by national political party liaisons and then prepared the ideas in the form of a draft Bill which was then presented to the Minister of Home Affairs who then presented the Bill to Cabinet and eventually Parliament. He said he was unaware of recommendations made by SALGA on the draft Bill and that the IEC had not passed on the finished Bill to SALGA or consulted with them on it.
Ms Z Balindlela (COPE) suggested that SALGA and the IEC be given an opportunity to consult on the Bill.
The Chairperson said that in future it would be useful for the two organisations to communicate on the Bill but not at the moment. He said that there would be serious consequences if the Bill was withdrawn from the parliamentary process, especially in view of the local government elections to be held next year.
Mr De Bruyn said that SALGA was not trying to form a stumbling block in the process of processing a Bill which was nationally beneficial. He said that it was rather important that consultation did take place where legislation affected local government. He added that in the past SALGA had had fruitful interaction with the IEC and that consultation was important. He said that SALGA felt that the Bill was important and would not seek to stilt progress on its development. He said that the Association had merely sought to illustrate that consultation was important when dealing with local government issues. He thanked the Committee for the opportunity to present SALGAs submission on the Bill.
Adv Baatjies echoed the points made by his colleague Mr De Bruyn. He emphasised that SALGA should be consulted in future on local government issues.
The Chairperson thanked SALGA for its submission and input and commented on the usefulness on the continued interaction between SALGA and the IEC.
Ms Lovemore sought clarity on SALGAs point on municipal candidates being of a certain calibre and quality.
Adv De Bruyn responded that SALGA was seeking to lobby for that point to be included in future legislation.
Mr Mnqasela sought clarity on SALGAs proposal on when a candidate became a councillor.
Adv Baatjies responded that SALGA wanted no confusion on when a successful candidate could be lawfully called a councillor and receive remuneration for it with regards to Section 64 which was unclear.
Mr van der Merwe said that the IEC felt that the Local Government: Municipal Structures Act of 1998 dealt with the Section 64 issue raised by Adv Baatjies in totality. He expressed the IECs appreciation of the input the Association gave at the various levels it dealt with the Commission. He said that SALGA had been of great assistance with the work the IEC had to do with local government structures and that the lack of consultation on the Bill was purely an omission and not purposefully done.
Mr Monwabisi Nguqu, Senior State Law Advisor, said that a candidate was a member once he or she had been elected and then sworn in as a member. They were eligible to receive remuneration from the point of their successful election and notification of that by the IEC. However, that remuneration was paid back retrospectively with consideration given to the period prior to their being sworn in.
The meeting was adjourned.