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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
24 August 2000
MUNICIPAL SYSTEMS BILL: CHAPTER 5
Municipal Systems Bill
Working Document: Proposed Amendments to Municipal Systems Bill
Department delegation: Ms Jackie Manche, Mr Petra Bauer, Mr Gerard Grove, Mr Elroy Africa
The Committee reviewed amendments it made earlier in the week and discussed Chapter 5, "Integrated Development Planning". The discussion on Chapter 5 focused on policy, rather than technical aspects of the chapter. There was a long discussion on the implications of the requirement of Clause 21(1) that provincial and national integrated development plans be aligned with those of the municipalities. No amendments were agreed upon.
The committee focussed on Clauses 23 to 34 specifically dealing with Integrated Development Plans, their content, the processes for their planning, drafting and adoption.
With reference to the formation of a technical sub-committee, the Chairperson, Mr Carrim, mentioned the Rules of Parliament in relation to the formation of sub-committees and referred Members to Rules 122, 123 and 140. In short, sub-committees can be formed, but have no decision-making power.
Revision of changes Chapters 2, 3 and 4 of the Bill
The Committee went through a detailed review of changes to Chapters 2, 3 and 4 of the Bill that they had made at the meeting of 23 August 2000. Some of these changes are explained below.
Mr Bhabha (ANC) led the review. He said the constitutionality of Clause 3 needed to be checked.
He noted that the word "interference" in Clause 4 is problematic but is being used provisionally until a more accurate synonym can be agreed upon.
The use of the word "women" in Clause 8(4) had been found to be clumsy and so has been replaced with "gender representivity", as proposed by Mr Madlala (SALGA).
Clause 11 has been flagged as problematic.
Clause 14 has been altered so that the Minister making the assignment will have no discretion.
The words "of the legislation" have been added to Clause 14.
Mr Carrim, the Chairperson, said that, as a general rule and specifically here in terms of Clause 15(4), precise and accurate writing will be favoured over more elegant or legalistic writing.
It was proposed that the word "draft" be added to Clause 18 (1)(a)(i).
Chapter 5 "Integrated Development Planning"
The Committee had previously complained that this chapter is too complicated and that SALGA, as a key stakeholder, must be involved in the drafting of this chapter. The Chairperson suggested there are two ways of viewing the IDPs, as a strategic instrument and as a plan, and reviewed some of the Committee's clause discussion from its previous meeting. The Committee had suggested that the Bill might be too ambitious in terms of its IDPs and that municipalities will not be able to implement them easily. The Committee resolved to move carefully in its discussion of Chapter 5, since it is complex and political.
Part 1: General
Clause 20 Municipal planning to be developmentally oriented
Ms Borman (DP) suggested that "undertake" in Clause 20(1) be replaced with "promote" and asked how the Department sees this in terms of local funding. Mr Africa, of the Department, said that the word "undertake" was necessary to make it clear that IDPs are an obligation and not a choice.
Clause 21 Municipal planning in co-operative government
Mr Solo (ANC) asked why the original Clause 21(1)(a) had been deleted and said that his party felt strongly about its inclusion. The Chairperson said that Clause 21(1)(a) is not problematic since it only gives effect to the Constitution and so must be left in. Mr Bhabha asked that the word "other" be added to Clause 21(1) in order to read "other organs of state".
Mr Bhabha asked what if the provinicial and national levels do not meet the Clause 21(1)(b) requirement of mutual compatibility. He wondered what the practical consequences of such a refusal would be. Mr Smith (IFP) argued that, besides the problem of compliance, true compliance or alignment was a practical impossibility since all municipalities do not have the same planning processes or the same time frames. Mr Bhabha suggested that the use of the phrase "strive to" would resolve the problem.
Mr Africa commented that the Department is mindful that Clause 21(1) represents ideology in the absence of clear policy. He said the intention was that national planning take the planning of municipalities as a point of departure. This would require dialogue with the affected municipality.
Ms Manche of the Department said they saw this section as bold and that they want IDPs to be the planning instruments throughout the country. This legislation would take the lead to that end. She used the recent floods in Mpumalanga as an example, saying this legislation would have streamlined the process there. The goal is that national planning not undermine municipal planning.
Mr Bhabha wondered how problems in municipal planning would affect national planning. The Chairperson said that this section represents an ideal but that it also has certain, unintended, practical implications. Mr Madlala of SALGA suggested that the problem could be solved by changing the word "must" to "should". The Chairperson closed the debate by saying the technical sub-committee would deal with it.
Clause 22 Adoption of intergrated development plans
As to Clause 22(2), it was asked if there would be changes to IDPs every time there was a new council. The Chairperson responded that IDPs represent a structure and are usually used by incumbents.
Clause 22(4) provides that a new council will not have to go through public consultations again; however, the Chairperson reminded the Committee that IDPs must be published for comment.
The committee found it relevant to move on to Clause 28 A (Process to be followed) prior to moving on to Clause 23.
Clause 28A Process to be followed
Clause 28A outlines the process when a municipality adopts an IDP. Clause 28A(3) is intended for a situation in which a council wants to adopt a previous IDP, allowing it to do so without going through the full process. Mr Africa explained that an IDP is not a by-law and so its process for public comment is more complex. The essential idea is that the process must be participatory and rigorous enough to allow for public comment.
Part 2: Contents of integrated development plans
Clause 23: Core components of integrated development plans
Subclause 23 (a)
This subsection was accepted by the committee and remains unchanged.
Subclause 23 (b)
The Department commented that the term 'basic municipal services' in the subsection refers to services such as water, electricity and waste disposal to mention a few.
Mr Carrim stated that SALGA's submission had asked why municipal services had not been spelt out in the Bill. However he pointed out that they are not even spelt out specifically in the Constitution. Mr Smith (IFP) added that the Constitution only makes mention of 'functional areas' under which services fall. Mr Bhabha clarified the matter by stating that the municipality must use its own discretion to decide what a service is. He feels that it would be impossible to list them all. The committee agreed to come back to this issue.
Subclause 23 (e)
The Department stated that an IDP must reflect a spatial development framework to set to set up guidelines for a land use management system.
The Chair asked the Department whether IDPs have replaced LDOs (Land Development Objectives). The Department replied that they view 23(e) as an overriding clause - they are moving away from LDOs. The Chair then suggested that a clause is needed to state that IDPs take precedence over LDOs.
Mr Smith asked if IDPs will apply to all municipalities across the board. The Chair answered that they will qualitatively differ from municipality to municipality. In reaction to the Chair's answer the Department stated that the core components of IDPs would apply to all municipalities, only the depth and complexity would differ.
In answer to Mr Carrim's query as to whether there was a specific clause stating this, the Department replied that there was not. The Chair emphasised the need for such a clause. The Chair felt that this subclause needs to be closely examined and stated that it would be reviewed at a later stage.
Subclause 23 (i)
The Department explained that the intention in this clause is exactly the same as it was in the original Bill. The wording had been changed so that it was more specific about the integrated development plan including KPIs (key performance indicators) and PTs (performance targets).
Subsections 23 (c), (d), (f), (g), and (h)
The committee agreed that these are acceptable.
Part 3: Process for planning, drafting, adopting & review of integrated development plans
Clause 23A: Framework for integrated development planning
The Department was of the opinion that local and district municipalities must together prepare a framework for their respective IDP's. It would clarify their respective roles and set out basic principles applicable to both local and district IDP's.
Subsections 23(A)(1), 23(A)(2)(a), (b), (c)
The committee was in consensus that these subsections should be included in the Bill in the proposed amended form.
The Department stated that the subsection makes provision for consultation between the district and the local municipality during the process of drafting their respective IDPs.
Mr Smith asked if a problematic framework could be changed. The Department stated that nothing prohibits the framework from being changed and they suggested including the words, 'including amendments to framework' to make provision for changes to the framework. The committee assented to this suggestion.
Clause 24: Adoption of process
The clause remains unchanged from the original Bill and the committee agreed to its inclusion.
Clause 28A: Process to be followed (replaces Sections 25-28 in original Bill)
Subsections 28(A)(1)(a), (b), (c) and (d)
The Department explained that the process to be followed by the municipality to draft its IDP should be in accordance with a predetermined programme.
The Chair asked if the community has input in the process of drafting the IDP. The Department stated that not too much emphasis should be placed on the process. The Chair insisted that provision be made for consultation with the community over the process. The Department suggested that provision could be made for it in Clause 24.
The committee agreed that no changes needed to be made to this.
Subclauses 28(A)(3)(a), (b) and (c)
These state that when a district municipality plans integrated development for its area, this must be in close consultation with the local municipalities. The committee had a problem with the phrase 'in consultation with' as it raises the question as to which municipality would have the final say in terms of this plan.
Mr Smith asked how a district municipality would get anything done if they must take the proposals of the local municipalities into account. Mr Bhabha stated that it would depend on which municipality's decision would take precedence. He proposed that one of them needs to be given the authority. It was agreed that these subclauses will have to be looked at in detail at a later stage.
Subclauses 28(A)(4)(a) and (b)
The Department stated that these subsections deal with exactly the same issues as in Subclause 28(A)(3) - only now the obligation lies with the local municipality to be 'in consultation' with the district municipality. The committee agreed that they had the same concerns as with Subclause 28(A)(3) and that they would return to it at a later time.
Clauses 28(B) and 28(C): Management of drafting process and Provincial monitoring and support
The committee was happy with the changes that had been effected to these clauses.
Clause 29: Copy of integrated development plan to be submitted to MEC for local government
Subclauses 29 (1)(a) and (b)
The committee was pleased with the amendments made to these subsections and gave it their approval. However some concern was raised over the issue of problems arising.
Mr Bhabha asked what happens if there is a problem with the plan itself or in the process. He stated that the problem with the process could not be as easily remedied as with the plan itself. He asked how the MEC would correct a defect in the process. The Chair answered that no such remedy exists in the Bill and that it will have to be looked at.
The Department explained that this provides that if the MEC finds fault with the submitted plan, he must refer it back within 30 days of receiving it, for correction.
Mr Madlala (SALGA) asked what happens if the MEC objects after the 30 day period has passed. The Chair stated that the committee had previously agreed that if the plan was not rejected within the 30 day period, it is deemed accepted. The Department suggested that the 30-day period remain as is but the MEC should be given the discretion to extend the time period when the need arises. The Chair and Mr Bhabha suggested that the Department thus insert an 'escape clause' in this subclause.
Subsections 29(3) and 29(4)
The committee agreed that these are acceptable.
Clause 30: Ad hoc committees
The Department explained that this clause deals with the MEC of Local Government appointing an ad hoc committee consisting of members representing local government, provincial government and national government. The committee accepted the clause.
Clause 31: Annual review and amendment of integrated development plan
The committee accepted the clause.
Part 4: Miscellaneous
Clause 32: Status of integrated development plan
No concerns were raised over this clause except that Mr Carrim asked why the words 'all persons' were omitted. The Department answered that the Bill does not affect everybody. Consensus was reached over the clause's inclusion in the Bill.
Clause 33: Municipality to give effect to integrated development plan
Ms Borman (DP) had some concerns over this clause but the Chair stated that they would address her concerns at a later time.
Clause 34: Regulations and guidelines
The committee expressed concern over some of the provisions of this clause but stated that it would deal with them at a later time.
The meeting was adjourned for the day.