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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
17 November 2000
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL
Documents handed out
Local Government: Municipal Structures Second Amendment Bill [B71 - 2000] see Appendix 1 at end of this report for tabled Bill
Municipal Structures Second Amendment Bill [gazetted version]
The relevant stakeholders consulted with each other and decided that it would be unconstitutional to proceed with the Bill. This is because the Bill which was gazetted is fundamentally different from the Bill which is in Parliament now. Consequently, the requirement in section 154(2) of the Constitution has not been met:
(2) Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.
The Committee Chairperson, Mr Yunus Carrim pointed out that although the Committee cannot proceed with the Bill there is consensus on having successful local government elections on the 5 December 2000.
The Committee was initially supposed to meet at eleven o' clock but due to the fact that the relevant stakeholders were still consulting on the constitutionality of proceeding with the Bill the meeting was postponed until twelve o' clock.
At twelve o' clock the Select Committee Chairperson, Mr Bhabha, announced that they were still trying to finalise the questions on constitutionality which had been posed the day before. It would be inappropriate to proceed with the Bill until there was consensus between all the stakeholders regarding whether to proceed or not. He said that the meeting would commence at two o' clock.
At two o' clock Chairperson Yunus Carrim made a statement to the following effect:
The Chairpersons of the Portfolio and Select Committees on Provincial and Local Government, the Department and traditional leaders consulted with each other on the issue of the constitutionality of proceeding with the Bill. All decided that it would be unconstitutional to proceed with the Bill. The reason for this is that the Bill which was introduced in Parliament is fundamentally different from the Bill which was gazetted. The Bill which was gazetted is a section 75 Bill while the Bill in Parliament is a section 76 Bill. Consequently, the requirement in section 154(2) of the Constitution has not been met.
Section 154(2) reads: ''Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation''.
Chairperson Carrim noted that the positive side of this delay was that Parliament could now consult with the traditional leaders and other stakeholders and give the submissions presented the previous day the valued attention that they deserve.
The version of the Bill in Parliament will be gazetted for comment as soon as possible. The Portfolio and Select Committees will meet again for joint sittings on 29, 30, and 31 January 2001. On 30 and 31January there will be public hearings. On 26 February the Bill should go to the National Assembly and then it will go to the NCOP.
Although the Bill cannot proceed, there is consensus on still having successful local government elections on 5 December. The Chairperson said that everyone should work together to make sure that the elections go off successfully.
Comments made by members:
Mr Smith (IFP) said that this issue has been on the government's agenda for the past seven years. It was inconceivable that a Bill in Parliament has not been gazetted properly. The fact that this happened is a ''show of remarkable incompetence''. He added that the Executive had entered into an agreement with the Coalition of Traditional Leaders. This agreement has now not been implemented.
Mr Aucamp (AEB) commented that government should be aware of the needs of the pluralistic and multi-cultural groups in South Africa. The issue regarding traditional leaders should have been addressed pro-actively beforehand and not hurriedly dealt with before the elections. He noted that government's approach to the matter seemed to be a form of damage-control.
General Viljoen (FF) remarked that a workable solution in respect of traditional leaders is very important to ensure rural stability.
Mr Sithole (ANC) commented that members must not make accusations of irresponsibility. All are committed to a process and all must accept the victories and the failures together.
Chairperson Carrim commented that they had consulted with the highest level of government on this issue. Their instructions were to try to pass the Bill and the only issue which should stop them from doing this was if it was unconstitutional to do so.
A traditional leader made the following comment on behalf of all traditional leaders:
They appreciate Parliament's problem. They understand the procedure of separation of powers and would hate to see any law not being followed. This would undermine the law. Further, they appreciate that dates have been set for hearings and so forth. It shows Parliament's commitment to addressing the needs of traditional leaders. Traditional leaders felt that there were shortcomings in the Bill and they will use this opportunity to put forward views of what they want in the Bill.
The traditional leaders want municipal elections to take place and they should take place freely and fairly. The Coalition will urgently seek a meeting with the Executive. The spirit of co-operation between traditional leaders and government will continue so that they can find a solution.
A representative of SALGA agreed that legislation should be dealt with in accordance with proper procedure. SALGA would try to ensure that traditional leaders continue to enjoy the powers that they have now. They hope that the process will unfold with minimal problems.
Chairperson Carrim concluded by saying that the committee would reconvene on 29 January. This will be a Portfolio Committee hearing and not a briefing. Within a certain latitude however all stakeholders can participate in the meeting. He said that he had asked the Speaker about the participation of stakeholders in Portfolio Committee meetings the day before and was informed that the rules do not preclude other people from talking at the meetings as long as there is relative consensus on their participation. On this note the meeting was adjourned.
To amend the Local Government: Municipal Structures Act, 1998, so as to provide for the retention of the powers, functions and role of the institution of traditional leadership; to provide for powers and functions of traditional authorities in local government matters; and to foster and harmonise partnerships between traditional authorities and municipal councils so as to enhance the culture of co-operative governance between traditional authorities and municipal councils; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa as
Substitution of Part 6 of Chapter 4 of Act 117 of 1998, as amended by Schedule 3 to Act 32 of 2000 and section 5 of Act 33 of 2000
1. The following Part is substituted for Part 6 of Chapter 4 of the Local Government:
Municipal Structures Act, 1998:
"Part 6: Traditional leadership"
Powers and functions of traditional authorities in local government matters
81. (1) Despite anything contained in any other law, a traditional authority observing a system of customary law continues to exist and to exercise powers and perform functions conferred upon it in terms of indigenous law, customs and statutory law, which powers and functions include-
(a) the right to administer communal land;
(b) communicating decisions of the municipal council affecting its area to the people living in the area;
(c) communicating to the municipal council the views of the people living in its area;
(d) promoting the development of its area and the people living in the area;
(e) participating in development planning;
(f) alerting the municipality to any hazard or calamity threatening its area or the wellbeing of people living in the area;
(g) making recommendations to the municipality on any matter affecting
its area; and
(h) exercising any other power or performing any other function assigned to it by notice in the Provincial Gazette, by the MEC for local government acting in accordance with a policy framework issued by the Minister
(2) A municipality must consider a recommendation made in terms of subsection (1 )(g) and inform the traditional authority of any decision taken.
Relationship between traditional authorities and municipal councils
81A. (I) Traditional authorities and municipal councils must exercise their powers and perform their functions in a manner that respects the
functional and institutional integrity of one another.
(2) Traditional authorities and municipal councils must
(a) co-operate with one another in areas of common interest; and
(b) endeavour to resolve any dispute amicably.".
Repeal of Schedule 6 to Act 117 of 1998
2. Schedule 6 to the Local Government: Municipal Structures Act, 1998, is repealed.
3. This Act is called the Local Government: Municipal Structures Second Amendment Act, 2000.
MEMORANDUM ON THE OBJECTS OF THE LOCAL GOVERNMENT: MUNICIPAL STRUCTURES SECOND AMENDMENT BILL, 2000
Traditional leaders have expressed concern that the new municipal boundaries will result in their losing control over various functions traditionally performed by them.
2. CONTENTS OF BILL
In order to deal with the concerns expressed by the traditional leaders, the Minister for Provincial and Local Government proposes amendments to Part 6 of Chapter 4 of the Local Government: Municipal Structures Act, 1998 (Act No 117 of 1998). Part 6 deals with the participation of traditional leaders in local government.
3. OTHER DEPARTMENTS AND PERSONS CONSULTED
Â· The Presidency.
Â· The Chief State Law Adviser
4. FINANCIAL IMPLICATIONS FOR STATE
There will not be any additional financial implications for the State.
5. IMPLICATIONS FOR PROVINCES
6. PARLIAMENTARY PROCEDUE
The State Law Advisers and the Department of Provincial and Local Government are of the opinion that this Bill should be dealt with in accordance with the procedure established by section 76 of the Constitution since it deals with "Traditional leadership", which is a matter referred to in Schedule 4 to the Constitution.
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