Municipal Systems Bill: Chapters 3 & 4

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Cooperative Governance and Traditional Affairs

22 August 2000
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE; LOCAL GOVERNMENT & ADMINISTRATION SELECT COMMITTEE
23 August 2000
MUNICIPAL SYSTEMS BILL: CHAPTERS 3 & 4

Relevant Documents:
Municipal Systems Bill
Municipal Structures Amendment Bill
Working document: proposed Amendments to Local Government: Municipal Systems Bill

SUMMARY
The Committee reviewed the amendments to Chapter Three of the Bill and began Chapter Four amendments (Clauses 7 to 17). The discussion focused on capacity building of the public, as well as public participation in the budget of a municipality. The issue of community participation in the spending of its budget is still open for discussion, as the Committee tries to balance a participatory transparency against the danger of unfettered spending.

The other major points of discussion were:
- when a municipality can close its meetings to the public and the media.
- the assignment of additional functions and powers to municipalities and the ensuing procedural requirements that will have to be met in assigning such functions and powers.
Where a lack of understanding or consensus is holding up the committee's progress in working through the Bill, such issues are being referred to a technical sub-committee.

MINUTES
The Chairperson, Mr Carrim, said a sub-committee would be formed to make the deliberation process more efficient. Using the Working Document containing the current proposed amendments to the Bill, the Committee considered Chapter 3.

Chapter Three: Public Participation
Clause 7 Development of culture of public participation
Mr Carrim explained that this chapter provides for information consultation with the public. He also outlined the comments of consulted NGOs, that the public did not have the opportunity to shape this legislation and that the aims of Chapter Three were not followed up consistently in the rest of the legislation. Moreover, consulted NGOs raised the question of how to consult effectively for meaningful public participation, that is, how to gather feedback from people in rural areas or people who are otherwise isolated so that consultation reflects the population as a whole. The municipality, he said, must take some responsibility for capacity building and funding with regard to public participation

Mr Ackermann (NNP) commented that the most important thing is to build the capacity of people who are disadvantaged and asked how Chapter Three accomplished this goal. The Chairperson responded by asking the Committee to think more broadly by recognising that implementation depends on how community organisations are given capacity. Ms Borman (DP) said she is concerned about the cost of capacity building, asking how can one strengthen communities without resources.

The Committee agreed to delete the words "seek to" in Clause 7(1).

An ANC member said that the preparation of a budget means many things. Consequently, a community needs to be involved in identifying its own needs. This is a fundamental need, the member said. Therefore, she concluded, Clause 7(1)(a)(iv) is an excellent addition to the Bill. Another ANC member agreed, adding that there is no point to this Bill without budget participation. For a community not to have control over its own budget is a reversion to the practices of Apartheid, she asserted.

Ms Borman (DP) insisted that, nevertheless, she did not like the wording of Clause 7(1)(a)(iv), saying that a community does not prepare its budget but that this is the work of its executive committee. Dr Bauer of the Department reminded members not to look at the Bill's clauses in isolation but to recognise that they involve an elaborate process of public involvement. The public, therefore, must have access to draft budgets and can make comments that must be taken into account. Ms Manche of the Department agreed that one of the challenges of the project is to move away from the budget as a technical process so that people can participate.

Ms Borman (DP) said that Clause 7(1)(c) is where they start to have a problem with costs and asked if there were to be any limits imposed on that spending.

The Chairperson reminded the Committee that all provisions of the Bill are subject to the Constitution, specifically Section 152 [s152 (1)(e) Objects of Local Government "to encourage the involvement of communities and community organisations in the matters of local government"].

The Committee finally agreed to "flag" Clause 7(1)(c) to signify that it had not been adopted and was still open for discussion. Spending should not be unfettered, even if it is technically covered by the Constitution, said the Chairperson.

Clause 8 Mechanisms, processes and procedures for public participation
Ms Borman asked why language preferences had been deleted from the "special needs" enumerated in Clause 8(3). The Chairperson responded that they are mentioned in Clause 9(2). Ms S Botha (DP) said this did not mean they did not need to be mentioned in Clause 8. The Chairperson agreed this was a good point and asked that "language preferences" be added to Clause 8(3)(e).

Ms Manche said Clause 8(4) was there to remind municipalities of the need to include women. Mr Madlala (SALGA) asked what would happen if a committee consisted of women only. He asserted that it is the prerogative of a municipality to appoint its own committees.

Clause 9 Promotion of public participation & Clause 10 Public notice of meetings of municipal councils
These clauses were approved.

Clause 11 Admission of public to meetings
Mr Bhabha (ANC) said Clause 11(1)(b) is important because it prevents a chairperson or a committee passing self-serving resolutions. Dr Bauer of the Department agreed that the section makes concrete the general principles of the Constitution. The Chairperson asked if "national legislation" would be less of an infringement on the Constitution than "by-law". He asked that they circumscribe the section to keep it within certain parameters. The section was flagged and is open for further discussion.

The Committee agreed to add "when discussing the budget" to Clause 11(2), a list of matters from which the public and the media may not be excluded. Mr Madlala (SALGA) agreed that these are issues from which the public must not be excluded. Mr Smith (IFP) asked if it were unconstitutional to exclude the public from such meetings. The Chairperson suggested this was a question for the sub-committee.

As to Clause 11(4)(a), Ms Borman (DP) asked, as a practical question, how much space should be provided. For example, she mused, what if busloads of constituents were to arrive, demanding entry? The Chairperson responded that this unlikely eventuality is covered by Clause 11(4)(b), which refers to "reasonable steps". The Chairperson went on to comment that public participation tends to be glorified when, in fact, it is a battle to get people to attend public meetings.

Afternoon session: Mr Bhabha took over as Chairperson of the meeting.

Chapter Four: Municipal Functions and Powers
There was agreement that the use of the word "assignment" must be consistent throughout the Bill. The Chairperson said the point is that an assignment requires certain conditions to be fulfilled. Section 156 of the Constitution sets out the basic principle of assignment but not its mechanism.

Clause 14: Assignment of additional functions and powers to municipalities generally
The Committee agreed to add "Deputy Minister" to Clause 14(1)(a).

Subsections 14(2) and 14(3) were acceptable to the committee and consensus was reached for their inclusion in the Bill.

Referring to 14(4), the Department explained that where a Cabinet member or MEC places a project upon a municipality as mentioned in subsection 14(3) and it has major financial implications, the Cabinet member / MEC must refer the matter to the Financial and Fiscal Commission (FFC) for a financial assessment.

Mr Bhabha felt that the aim of this subsection is to protect Local Government and he therefore suggested that the Minister for Local Government or its MEC should be the one invoking the services of the FFC.

The Department was hesitant to give the discretion to the Minister or MEC of Local Government. It believed that instead the responsibility should reside with the Cabinet Minister who initiates the project.

The Chair decided that the matter would be referred to the 'technical committee' comprising of Mr Bhabha, Mr Smith (IFP) and the Department.

Clause 14A: Assignment of additional functions and powers to specific municipalities
Referring to subsections 14(A) (1) and 14(A)(2), the Department stated that where a Cabinet member or MEC assigns a function or power in terms of national legislation or an agreement in terms of Section 99 of the Constitution, the Minister must be consulted.

Mr Smith (IFP) enquired as to why the subsections did not make provision for an agreement in terms of Section 156(4) of the Constitution.

The Department answered that the two types of agreements envisaged in the subsections refer to unfunded mandates as opposed to funded mandates in Section 156(4) of the Constitution.

Mr Smith reacted by saying that the heading of Section 14A should have the notion of 'unfunded mandates' included in it. The Chair stated that the issue of change of heading should be referred to the technical committee.

The committee agreed on including Section 14A as is, in the Bill.

Clause 15: Executive and Legislative authority and Clause 16: Legislative procedures
The committee reached consensus that no contentious issues arose in these clauses and gave the go ahead for them to be included in the Bill.

Clause 17: Publication of by-laws
The Department stated that the clause deals with the issue that communities must be informed of by-laws that would affect them.

Mr Smith (IFP) stated that the word 'feasible' is problematic, since when is it not feasible to give notice. The Chair stated that it would not be feasible to require such notice in areas where no local newspapers are circulated.

Clause 18: Standard draft by-laws

Mr C Ackermann asked if Parliament has oversight over standard by-laws made by the Minister. Dr Bauer said this was not the case. He explained that the Bill does not empower the Minister to make any law for any other sphere of government. What it says is that the Minister can send the Municipality guidelines, which are merely a capacity-building exercise and the municipality has to go through the process of adopting its own by laws.

Mr Madlala said SALGA wanted to have standard by laws made so as to accommodate small municipalities. These place no statutory obligation on a municipality as the Constitution clearly states that by laws cannot be delegated on a municipality but they have to go through the process of publishing them for comment and adopting them after making suitable modifications.

Mr Madlala said what he does not understand is why Parliament has to be over-prescriptive to the Minister in clause 18(1)(b). Dr Bauer said it is because the standard draft by-laws do not go to Cabinet. Mr Bhabha reminded Mr Madlala that the Bill comes from the Department and the Minister is comfortable with clause 18(1)(b) as it is. The committee gave its go ahead for the section to be included in the Bill.

The meeting was adjourned.

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