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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
22 August 2000
CHAPTER 1 OF MUNICIPAL SYSTEMS BILL: PROPOSED AMENDMENTS
Municipal Systems Bill
Municipal Structures Amendment Bill
Proposed Amendments to Local Government: Municipal Systems Bill
In reviewing their proposed amendments as prepared by the Department in the Working Document, the Committee focused on Chapters 1 and 2 of the Municipal Systems Bill. The Department was asked to justify and explain some of the changes in order for it to be in line with the recommendations that were made in the committee's previous sittings.
The bulk of the discussion centred on the definition of "local community" and, in particular, the inclusion in this definition of "any persons who happen to be in the municipality at any given time". It was pointed out that could apply to any transient who happens to be passing. The practical consequences, if any, of this were discussed but no conclusions were arrived at.
The Chairperson, Mr Carrim, opened the meeting by reminding the Committee of some of the main issues surrounding the Bill:
- its implementability or capacity,
- the need to introduce gender issues more substantially,
- the need to explore the financial implications of the performance management provisions
- the regulations that will be required for the Bill to be implemented in phases.
Mr Carrim added that the Bill needed to be better integrated as a whole document and that the Bill must be passed expeditiously if there was to be any point in passing it at all.
Chapter One: Interpretation
Clause 1: Definitions
The new definition set out for "by-law" was discussed. It was suggested that "action" would be preferable to "act", and that "legislative" should encompass executive actions as well. These suggestions were neither accepted nor rejected, but merely discussed.
The Chairperson took an authoritative approach to the time-efficiency of the meeting process, saying that the definitions had been much discussed before the parliamentary recess and that time would not be wasted in going over the same territory again. The Committee was now to restrict its perusal to new definitions and limit its comments to serious objections.
The Chairperson commented that, in his opinion, the definition of "development" is a very good one indeed, and much more advanced than the one he worked with while in Australia. Ms Borman (DP) agreed, but asked that they ensure the definition of "development" is consistent with its definition in other Acts.
The definition of "financially sustainable" is a new one. Mr Smith (IFP) asked if it were really about financial sustainability or, rather, just a matter of the books being balanced. Ms Jackie Manche, a representative of the Department, responded that some services have funding that does not come directly from that service's users; in addition, rates are not tied to any particular service. Ms Borman (DP) commented that a municipality should not offer or provide services it cannot afford. Ms Manche answered that there is no such implication. Some services are too expensive and others cannot be charged for, such as using roads, so it is not always a matter of non-collection or non-payment.
A member of one of the opposition parties asked about people who cannot afford to pay rates. Ms Manche responded that many municipalities have indigent policies to assist those who are unable to pay. At the same time, these municipalities must be able to recover revenue through other means, such as grants and inter-governmental transfers.
Ms Southgate (ACDP) asked why there was not a system to set out accounts or to define financial sustainability. The Chairperson responded that this was not a problem, commenting that, despite political posturing, it is clear from other bills and the Committee's work that the Committee is concerned about financial sustainability and there is no real divergence in the Members' views.
As to the definition of "functionary", the Chairperson commented that he hates it but that they are stuck with it. Dr Bauwer, another representative of the Department, commented that "municipal manager" is excluded from the definition of "functionary".
The definition of "local community" is completely new. Ms Manche commented that there had been a lot of discussion around this definition since it has to do with a particular municipal jurisdiction and the relationships between the people there and includes anyone there at anytime who could receive services or have an interest in the municipality. Dr. Bauwer pointed out that "local community" had replaced "residents" throughout the Bill. The Chairperson added that they were all happy with that change.
Mr Smith (IFP) argued that organisations cannot be part of a community and that "community" should include or allow for an element of self-definition. Ms Borman (DP) asked if juristic persons were included in the definition of "community". Mr Smith went on to consider that, according to the proposed definition, every truck driver who passes by on the road is a member of the community. The Chairperson mentioned that many NGOs had asked why the Bill did not refer to "citizenship", whereas he thought the real issue was not citizenship but consumerism. He finds the definition of "local community" amorphous in that it does not explicitly recognise what he called the internal "strata" of a community, meaning the various sub-communities that exist within any community. As an example, he mentioned that a person who is poor requires more services from the municipality than does a person who is rich. Therefore, what is needed is an inclusive definition that can also recognise the different strata of a community.
Staying with the definition of "local community" Mr Bhabha (ANC) said that he thinks he appreciates what (d), "any person who happens to be in the municipality at any given time", is trying to achieve, but does not think it is successful. He thinks there should be an explicit reference to something like "loyalty" or something that recognises a reciprocal relationship between a municipality and the people there. Mr Smith (IFP) agreed, commenting again that there is just something weird in the idea that someone whose relationship with a community is as fleeting and passive as that of a transient truck driver's can be considered a "member" of that community.
Ms Botha (DP) asked if being considered a "member" of a community means full rights and participation in that community i.e. voting rights. An ANC member agreed and commented that all that was really relevant in this is the practical effect, if any, of being considered a member of a community. The Chairperson said he could not see any problem and that the discussion was wholly theoretical and academic - why can't a trucker be a member of all the communities she passes through? Mr Bhabha interjected that a twenty-year resident of a community has a different relationship to it than a trucker. The Chairperson repeated that whereas he saw the intellectual incongruity, he did not see its practical consequences. Mr Bhabha responded that community members have rights in terms of the Bill that perhaps should not be extended to truck drivers. He did not specifically enumerate these rights. Mr Smith called such people "ephemeral transients" who might not even realise that they are considered to be "members" of a community. Mr Madlala (SALGA) said the point of the definition is about providing to the community - this can include non-residents, such as tourists.
Finally, the definition of "local community" was neither adopted nor explicitly rejected.
Chapter 2: Legal Nature of Municipalities
Clause 2: Legal Nature
Dr Bauer from the Department stated that subsection 2(a) in the clause defines a municipality as an 'organ of state' in the Working Document as opposed to a 'corporate entity' in the Bill. The committee looked at the legal nature of municipalities and the rights and duties of the various components that comprise a municipality, hereby including the local community.
Mr Bhabha (ANC, Mpumalanga) said that in the Constitution, Clause 239 states that an organ of state has an administrative function but in this Bill it goes beyond this. Dr Bauer stated that he accepts that it is a broad term as is also envisaged by the Constitution.
Mr Mdlala (SALGA) added that Clause 41 of the Constitution also sees a municipality as an organ of the state.
Mr van Deventer (NNP) raised a concern that if a municipality is created in the Constitution, is the committee not trying to substitute this definition of a municipality.
Dr Bauer answered that Section151 of the Constitution does make reference to a municipality falling within the 'sphere of government'. He stated that it is a generic term and it applies to all organs of the state.
The Chair (Mr Carrim) asked whether there was consensus in accepting the definition and the parties were in agreement that there was.
Ms Manche from the Department stated that Subsection 2(b) dealt with what the municipality consists of. The Chair stated that he was unhappy with this subsection and felt that the average councilor reading this subsection would be confused by it. The wording needed to be simpler and he flagged it for the committee to come back to it.
The committee accepted subsections 2(c) and 2(d)
Clause 3: Co-operative government
Ms Manche stated that this clause placed the onus on municipalities to integrate plans with other spheres of government. In essence, municipalities must seek to participate in organised local government.
Mr Smith (IFP) felt that this clause places a positive obligation on municipalities to participate in organised local government. He further added that the autonomy of municipalities would be infringed if they are bound by organised local government agreements. Ms Borman (DP) concurred with Mr Smith on this matter.
The Chair stated that it would seem that consensus had been reached that the clause is unconstitutional and added that the matter would be referred to the technical sub-committee [comprising Mr Bhabha (ANC), Mr Smith (IFP) and Department officials].
Clause 4: Rights and Duties of a Governing Structure
The committee members accepted subsection 4(1)(a) which provides for the council of a municipality to govern on its own initiative the local government affairs of the local community.
Subsections 4(1)(b) and 4(1)(c)
The Department stated that the subsections 4(1)(b) and 4(1)(c) deal with the right of the municipality to exercise its executive and legislative authority. Dr Bauer pointed out that subsection 4(1)(c) is exactly stated as subsection 4(1)(b) with the exception of the addition of the words 'without interference'.
Mr Smith (IFP) asked the Department why were the words in subsection 4(1)(c) 'without interference ' added, when in effect it is saying the same thing as in subsection 4(1)(b).
Dr Bauer answered that two distinct concepts are being dealt with and they must be read in conjunction with the introductory words, 'the council'.
Mr Bhabha (ANC, Mpumalanga) stated that he has a problem with the use of the word 'interference' in subsection 4(1)(c), does it refer to civil or legal interference. Dr Bauer asked whether replacing the word 'interference' with the words 'independent manner' would solve this problem.
The Chair expressed his concern over the wording of these subsections as he feels that the everyday person would find it difficult to understand. He once again suggested that the technical sub-committee must try to solve the problem relating to the wording of these subsections.
Mr Bhabha raised the concern that executive and legislative authority need to be clarified. Dr Bauer replied that it will be addressed in Chapter 10.
The committee had no real concerns relating to the wording of subsection 4(1)(d).
Subsection 4(2)(a), 4(2)(b), 4(2)(c) and 4(2)(d)
The committee accepted these subsections as provided for in the Working Document.
However, Ms Borman (DP) asked the Department why subsections 4(2)(a), 4(2)(b), 4(2)(c) and 4(2)(d) were included in the Bill when the same provisions are provided for in Clause 150 of the Constitution. Dr Bauer stated that the person reading the Bill will not always have a Constitution at hand, therefore the Department felt it best to include the provisions in this clause.
The Department stated that the provision for gender equity was included as a result of the various organisations expressing a need for it in their submissions.
Mr Mdlala (SALGA) asked the Department what were the implications of this provision for the municipality and whether a woman could take the municipality to court.
Dr Bauer answered that a woman could in fact take a municipality to court. Mr Bhabha added that even if this provision were not included in the Bill, individuals would still have recourse to go to court in terms of the Constitution.
The committee agreed to this, with the inclusion of the word 'other' after the phrase 'together with' as recommended by Mr Smith (IFP).
Ms Manche stated that the aims of this subsection was to strive to achieve the objects of local government as set out in Clause 152(1) of the Constitution in addition to encouraging municipalities to consult with communities on issues which affect them.
Mr Smith (IFP) felt that the provisions of subsection 4(3) should be included in subsection 4(2) that deals with the duties of the municipality. The Chair said that the subsection would be referred to the technical sub-committee.
The Department stated that the subsection makes provision for a municipality to be aware of the rights of citizens.
The Chair raised the concern that non-citizens would be excluded by the provision. He added that the rights of citizens would be dealt with in Chapter 8. The committee decided to flag this matter but put it on hold for the time being.
Clause 5: Rights and Duties of members of the local community
The Department stated that they had merely reshuffled the provisions of old Clause 5.
Mr Mdlala (SALGA) raised the concern whether it was appropriate to place this clause under the heading of Chapter 2. The Department concurred with Mr Mdlala on this point.
The Chair, Mr Bhabha and Mr Smith all agreed that the community does form part of the municipality. The Committee agreed that it should form part of Chapter 2.
The meeting was adjourned for the day.