Municipal Structures Second Amendment Bill: hearings

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Cooperative Governance and Traditional Affairs

15 November 2000
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Meeting Summary

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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT SELECT COMMITTEE: JOINT SITTING
16 November 2000
MUNICIPAL STRUCTURES SECOND AMENDMENT BILL: PUBLIC HEARINGS

Documents Handed Out
South African National Civics Organisation submission
Coalition of Traditional Leaders submission
Municipal Demarcation Board submission
South African Local Government Association submission
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]

Chairpersons: Mr Y Carrim (Portfolio Committee); Mr M Bhabha (Select Committee)

SUMMARY
The Minister emphasised the need for municipalities to be extended into rural areas to facilitate the upliftment of rural communities. Traditional leaders and municipalities should work hand in hand to achieve this aim. The Minister maintained that the discussion on traditional leaders is in no way complete. They would be embarking on the White Paper process soon and they hoped to have comprehensive legislation on traditional leadership by March 2001. The Director-General emphasised that the Bill was the product of intense negotiation between the Department and traditional leaders. A point of contention appeared to be the dual role of traditional leaders and municipalities and who in practice would have the last say in matters of conflict.

This second part of the meeting included presentations by the Coalition of Traditional Leaders, the South African Local Government Association, the Municipal Demarcation Board, the Khoisan Forum, the Commission on Gender Equity, SANCO and COSATU. The consensus among most of the presenters was that the time given to respond to the draft had been too short.

The main issue of contention was the constitutionality of the Bill itself. The Coalition of Traditional Leaders on the one hand, argued that if the Bill contravened the Constitution, the Constitution would have to be amended. They argued that amending the Bill only constituted the completion of the interim phase. The final phase would be completed once changes were made to the Constitution itself. On the other hand , the Commission on Gender Equality, SANCO and COSATU contested the constitutionality of the Bill and argued that, as the Constitution is the highest law of the country, all laws had to comply with its principles. They therefore argued that the Bill should not be passed as many of its provisions are in direct conflict with constitutional principles.

The Coalition of Traditional Leaders welcomed the revised version of the Bill as a first step toward meeting their concerns. They emphasised that the amendment to the Municipal Structures Bill is only an interim measure, the ultimate solution would come in the form of an amendment to the Constitution.

SALGA said it would not like to see the role of the traditional leaders in local government diminished. It acknowledged that the real issue is not an amendment to the Municipal Structures Act but to the Constitution to meet the concerns of traditional leaders. The association viewed the 20% representation afforded traditional leaders in local councils as not enough and as needing to be reviewed.

MINUTES
Municipal Structures Second Amendment Bill
Mr Carrim, Portfolio Committee chairperson, stated that the committees find themselves in unusual circumstances in that they are not following the normal processes of dealing with legislation. Mr Carrim stated that the provisions of this Bill are applicable only for an interim period and that the Department would over the next six months be vigorously addressing the needs of traditional leaders.

Address by the Minister Sydney Mufamadi
Minister Mufamadi thanked the committees for their commitment in dealing with the issues before them when they could have been campaigning for the local elections. He added that the upcoming election is not an ordinary one but rather another milestone in "our democracy's movement away from infancy". One of the committees' primary functions is to create a legislative base for local government to play a role in the transformation of the country.

Mr Mufamadi felt strongly that it is necessary for traditional leaders and local government to work together for the benefit of the South African public. In the past, elected local government was usually limited to urban areas. Traditional leaders performed some of the functions of local government in rural areas. Mr Mufamadi however wished to emphasise that the absence of elected local government in these rural areas has led to a drastic increase in poverty there although traditional leaders had tried their utmost to perform the functions of local government.

The Minister quoted the following rural area statistics for the year 1996: 2.2 million homes did not have running water, 1.8 million homes did not have access to electricity and that 2.4 million homes had no telephones. This situation was totally unacceptable and part of the reason for it was that the systems of local government that they had inherited from the previous regime did not see to the needs of the people in rural areas.
He asserted that he did not want a 'Berlin Wall' type of a policy between the rural and urban areas.

Minister Mufamadi stated that the extension of district municipalities to rural areas is a step in the right direction away from the old Apartheid approach to one of democracy. The Minister added that one must not be too harsh in criticising the Constitutional Assembly for omitting to include in the Constitution specific roles and functions of traditional leaders. He explained that they had foreseen the possibility that there would be future evolvement in the roles of traditional leaders. Mr Mufamadi stated that the Constitutional Assembly's insight was correctly placed and this is why the committees are dealing with the evolvement of the traditional leaders' roles and functions.

The Minister reassured all present that the Bill is in no way final and that they are only trying to make provision for traditional leaders to play a role in local government. He explained that their intention is to complete the White Paper process by March 2001 and to put in place the legislation that was envisaged by S 212 of the Constitution. This process would be charting a new path. He emphasised that the policy process must be in line with the times that we live in. The Minister was adamant that it is time for both elected public representatives and traditional leaders to realise that they are responsible to the public. Mr Mufamadi stated that the Municipal Structures Act will not be the final piece of legislation to set out the role of traditional leaders and that he is well aware of the fact that it can be placed under constitutional scrutiny.

Briefing by the Director General, Mr Zam Titus
The Director General stated that the Bill sets out issues that were not dealt with by the Constitutional Assembly. The Bill dealt specifically with two issues:
- functions of traditional leaders
- role of traditional leaders in local government.

The first version of the Bill had been published in the Government Gazette ten days previously. Traditional leaders had however continued to make inputs up until the previous day and the Bill had been continually amended. The Director General stated that a second version was made available four days previously and the one currently before the committee is the third version. He pointed out that in drafting the various versions they had to take account the comments of the state law advisors, the Constitution as well as various role-players.

The Director-General stated that the Bill reflects all the issues that had been raised by the President in his speech on the 24 October 2000. Mr Titus stated that they had received comment from the Constitutional Court judges that it would have been impossible for all the functions of traditional leaders to be covered in the Constitution. The judges maintained that there would be gaps as South Africa's democracy is still an emerging one. He added that he hoped that this Bill is a step in the right direction as it is a product of negotiation.

The Director-General proceeded to read through the Bill clause by clause and stated that he would take questions from members afterwards.

Discussion
The Chair stated that the committee must show some understanding towards the Minister and the Director-General, as the circumstances within which they find themselves are exceptional. He added that they have indeed fulfilled the requirements of S 154 of the Constitution by putting the Bill forward for public comment.

Ms Borman (DP) asked if the amendments to the Bill are meaningful to traditional leaders?

The Minister stated that the provisions in the Bill are as a result of intense negotiation, so he assumes that the amendments must be relevant to traditional leaders.

Mr Smith (IFP) stated that he was not convinced that the issues agreed upon between the President and traditional leaders are reflected in the Bill.

The Minister stated that the Constitution does make provision for the powers and functions of traditional leaders to be maintained. He did however admit that the reality of the situation was that their roles had been diminished in the country's new dispensation. The aim of this Bill is therefore to try to maintain the role of traditional leadership as it was before 1994 in addition to their playing an active role in local government. He envisaged that by March 2001 they would have specific legislation enacted addressing the issue of traditional leadership.

Mr Beukman (NNP) asked why certain provisions of the Act were left out in this Bill.

Mr Oliphant (ANC) interjected that they were not dealing with the Bill itself as yet. He felt that they were busy with public hearings and that the question should be posed during the deliberation stage of proceedings.

The Chair agreed with Mr Oliphant in principle but stated that he would allow Mr Beukman some latitude.

The Director General stated that the answer to the question is a matter of detail and that he would answer it when he deals with the specifics of the Bill.

Mr Pheko (PAC) stated that they are dealing with a very complex issue. He asked whether traditional leaders and municipal councils would have dual authority. Mr Pheko added that in the past traditional leaders had authority over land falling under the jurisdiction of municipal councils. He asked what the situation is at present.

The Director General stated that S 41(g) and (h) of the Constitution already makes provision for these issues. He explained that they are only trying to guide these issues.

A member of a minority party asked a question in her mother tongue. Members of the media seemed irritated but the Chair stated that parliamentary procedure does make allowances for individuals to speak in their mother tongue if they so wish. He apologised for the lack of translation facilities but that they would get a translator.

The member posing the question offered to rephrase it in English: she was concerned that the imposition of municipal councils in traditional areas would bring with it baggage from the old Apartheid days. Would the chief still be able to perform his traditional rituals without infringing on some or other municipal regulation? Who would have the overall authority in times of conflict - which law between traditional and "Roman law" will have authority under the Act in rural areas?

The Minister stated that the municipal councils would have the final say, but that they would not be allowed to interfere with the traditional practices of leaders. Mr Mufamadi added that the Bill is only of limited duration and that the issue of traditional leaders would be comprehensively addressed when the White Paper process commences. The Minister felt that "motives must not be attached where there aren't any".

Ms Dube (SALGA) asked what was meant by "in any other law" in Clause 81(1).

The Director General stated that there might be other laws that deal with the subject of the provisions of Clause 81. He emphasised that no heed must be taken of those laws.

Mr Magashule (ANC) asked if the committee is going to listen to a variety of views. He stated that the committee should not pass legislation based only on one view. Further he said members should not pose questions on who is superior, the council or traditional leaders.

General Viljoen (FF) asked if the Director General had not considered using a term other than traditional leader. He asked if 'indigenous people' would not be more appropriate.

The Director General replied that they are scrutinising the term traditional leader for the White Paper process. One does not want to lose the linkages between terms. He said research done by the department found that countries all over the world use the term Traditional Leaders and the term is also recognized by the United Nations and that both Namibia and Zimbabwe use the term traditional leader. The Director General conceded that the issue of indigenous people is something that they need to look at.

A traditional leader, Mr Mangeni, was concerned that if their land were to be included under the boundaries of a municipality, what would stop individuals from informally settling on the land. He was afraid of the consequences of such informal settlements forming.

Coalition of Traditional Leaders
The presenter, Mr. Holomisa, stated that although Contralesa had been invited to represent traditional leaders at the meeting, they had been working as a coalition and had therefore decided to speak as one.

He indicated that he wished to point out an amendment that the Portfolio Committee should take into account. He referred to Clause 81(1) and recommended that the words 'within its area of jurisdiction' be inserted between 'exercise' and 'powers'. In addition, he felt that the words 'but not limited to' should be inserted after the word 'include'.

Mr. Holomisa went on to say that most African leaders today did not value their own heritage, but instead choose to adopt alien cultures as if Africa has no history. He said that SA was a new country and therefore had the freedom to develop while learning from the mistakes of other countries. On the one hand, he praised the Constitution as being the best in the world, but stated that they had to see the Constitution as being theirs to defend. The traditional leaders are proud of their way of life, but cannot unleash their full potential if they are denied their rights. He however stressed that the traditional leaders do wish to uphold the Constitution.

The question at this stage is no longer whether traditional leaders have a role to play, but what this role is. The President had assured the traditional leaders that the government had no intention of undermining the powers and functions of the traditional leaders, but instead wished to enhance these powers and functions. Furthermore, the president had stated that if the Constitution erodes these powers and functions, the necessary amendments would be made.

Mr. Holomisa stated that this confirmed that the source of the problem was the Constitution. The Constitution, upon conferring on local government its powers and functions, had the effect of obliterating the powers and functions of traditional leaders. The government has responded by amending local government acts, which is an interim measure, but has failed to amend the Constitution itself. However he stated that the Coalition supports the amendment of the Bill, subject to the additions mentioned above.

Among the reasons the Coalition supported the Bill were:
It promotes respect for the traditional authorities.
It recognizes the right of the traditional authorities to administer traditional land.

He stated that there would be an overlap between the areas controlled by traditional leaders and that controlled by local government. He stated that a re-determining of municipal boundaries was necessary. He stated however that this was not possible as it was already so late, but that they would negotiate until this and the changes to the Constitution had been effected. It was for this reason that they would not participate in the municipal government until these have taken place.

He stated that the passing of the amendment meant the end of the interim phase. The process will however only be completed once the constitutional changes have been made.

He concluded by saying that he commended the President on the way he had dealt with the issue. He emphasised that the Coalition had always supported the public's right to elect representatives but could not support this election while the powers and functions of traditional leaders were obliterated. He gave his assurance that the traditional leaders will do everything to lend its support to government aspirations and denied the allegation that they were holding the government to ransom. He urged members to support the Bill to ensure that it becomes law.

South African Local Government Association (SALGA)
The presenter, Ms Dube, expressed her concern at the short time which they had been given to respond. She pointed out that S154 of the Constitution was mandatory: it requires that a law that affects the powers of local government could only be passed if it had been published for comment. SALGA is committed to ensuring that this process happens. Nevertheless they are also committed to seeing that the role of the traditional leaders gets finalised.

The Constitution applies to municipalities in the whole of SA - both rural and urban. The obligation to determine the relationship between local government and the traditional leaders has been left to legislation. In the
discussion paper dealing with this issue, the functions of traditional leaders were listed. This was a policy framework developed with the input of all stakeholders including traditional leaders. She stated that there should therefore be no deviation from this list.

SALGA fully supports the finalising of the issue and felt that local government should actively participate in the process of attending to the interests of traditional leaders. With the new local government, municipalities face many challenges when dealing with backlogs especially in the rural areas. It was here that the unqualified support of the traditional leaders will be needed.

A second SALGA speaker dealt with the Bill itself. He stated that it was the responsibility of parliament to pass constitutionally and legally sound legislation. He referred to the long title and stated that it had never been the object of the Municipal Structures Act to deal with the functions and powers of the traditional leaders. This could therefore not be the object of the Bill either and that this was not the appropriate place to deal with the powers and functions of traditional leaders.

He pointed out that Chapter 7 of the Constitution, which deals with the local sphere of government, does not deal with traditional leaders, but with the municipality.

He referred to S81 of the Municipal Structures Act and states that one cannot have this juxtaposed with the Constitution as the Constitution overrides all legislation and therefore urged the Committee to look at this issue.

Furthermore, he asked how the Committee could retain laws that were unclear. He referred to the phrase 'despite any other law' and the terms 'indigenous' and 'customs' .He stated that clarity was needed on what these other laws are and that the copies of such laws should be made available.

He reiterated that it was the responsibility of Parliament to pass practical and constitutional legislation and stated that his organization will not support unconstitutional legislation.

Municipal Demarcation Board
Dr M Sutcliffe stated that the demarcation process was an ongoing one. One of the main aims of the Board in its demarcation was the minimizing of splits i.e. the situation where one traditional authority is split into more than one municipality.

He argued that one needs to ensure that there is legal certainty in the Bill regarding powers and functions of traditional leaders. In addition, these powers and functions had to be exercised in specific geographical areas which would have to be re-examined over time. Thus traditional authorities would have specific areas which would prevent uncertainty and disagreement between the traditional leaders and the municipality.

Discussion
The following questions were asked:
Mr. Magashule (ANC) asked about the legal certainty and constitutionality of S81.

Mr. Holomisa responded that if S81 is unconstitutional, the traditional leaders suggest that the constitution be amended.

An ANC member asked for clarity on the issue as to the percentage of traditional leaders who will be allowed to participate in the municipality.

Mr. Solo (ANC) indicated his support for the Coalition, but asked for an explanation as to whether they would not be supporting the local government elections. He also referred to S81 (b) and (c) `and asked how the traditional leaders view community participation and the way in which the community should interact with local councils. He said that there are structures in place to deal with community participation and asked whether they were not prepared to honour these structures.

Another ANC member asked what the increase in participation from 10% to 20% meant to the traditional leaders. She then referred to S151(4) of the Constitution (with regard to the National and Provincial Governments impeding on the powers of local government) and said that S81 may impede on the power of the municipality.

An ANC committee member noted that Schedule 5 of the Act deals with a code of conduct and asked if traditional leaders would also be dealt with in terms of this code.

Ms Botha (DP) queried whether this Bill is perhaps not acceptable until the Constitution is amended.

The Chair stated that the issue raised by SALGA as to the constitutionality of the Bill is not a topic for the Committee to decide. He asked whether the Director General could not meet with SALGA and other stakeholders and return with a position regarding its constitutionality.

Ms Borman (DP) asked whether the communities of these traditional leaders had been included at all in the consultation with traditional leaders. She also asked how thorough community involvement was in the demarcation process.

The presenters responded as follows:
Mr. Holomisa referred to the increase from 10% to 20% and stated that it made absolutely no difference to them, as they were interested in 100% participation.

Because of the overlap of boundaries between the traditional authorities and the municipality, there will inevitably be an overlap of functions. This, he stated, was precisely the reason they would not participate. He therefore proposed a clear separation of areas, which would, if accepted, necessitate an amendment of the Constitution. He stated that the Committees, as they are set up in terms of current laws, problems to them.

In addition, they rejected the provision that the MECs regulate the role of the traditional leaders. He argued that municipal powers were regulated by law and that this should be the case with traditional authority powers too.

He said that whether the code of conduct applies to traditional leaders would depend on whether they would be participating in traditional Councils. It depended on the outcome of the discussions with the government.

Regarding a person living in an area subject to a traditional authority but who does not subscribe to the laws of such area, he stated that such person can either agitate for the changing of such laws or move to a place which has laws with which he is comfortable.

Dr Sutcliffe of the Demarcation Board stated that meetings were held and some of the traditional leaders had actually chosen not to participate.

Khoisan Forum (National Khoisan Council)
The presenter stated that they had not prepared a comprehensive response due to lack of time. He also clarified that his organization now preferred to be referred to as the National Khoisan Council. He stated that the Council also has structures dealing with traditional leaders who were not represented there but were willing to participate. He dealt with the following issues in relation to the Bill:
- S81(a) did not apply to the Council as the Khoisan had been dispersed and divided. He stated that the Colonial government had demarcated it in terms of Khoisan custom and that they therefore respected these boundaries.
- They preferred the word 'headman' to read 'headperson'. This headperson would have to be remunerated for his work.
-He referred to the short title and stated that it should refer to the 'Indigenous and Traditional People'.

He criticized the view that the Khoisan was not viewed as part of the traditional people. He stated that suffering of the people was often due to the customary laws not being obeyed.

Commission On Gender Equality
The presenter, Ms Molimbawane stated that they were getting a legal opinion that afternoon as to the constitutionality of the Bill. She then read their submission.

South African National Civics Organisation (SANCO)
Due to the absence of members of this organization, the Chairperson read their submission and no further discussion took place due to time constraints.

COSATU
Mr Neil Coleman stated that this presentation was not detailed as they had not considered the full legal implications as yet. However he stated that whatever concerns they had had the previous day, had now been deepened.

He dealt with the procedural aspects with which he had a problem. COSATU found it disturbing that the election had been postponed thrice already. In addition it was also disturbing that the suggestion of constitutional amendments were based on threats of violence in the elections.

He stated that the Constitution was clear on procedure regarding local government issues and that the Bill was unconstitutional and had to be withdrawn totally. This issue would however have to be postponed until after the elections, as it had nothing to do with the elections. The requirement set out in S154(2) of the Constitution had not been complied with. The draft had been completely changed without having been introduced for public comment.

He also had a problem with certain substantive aspects:
Firstly, he declared the delegation of powers and substitution to be unconstitutional. The Constitution applied to SA as a whole and that included the areas in which the traditional leaders functioned. The Bill clearly violates S151(4) of the Constitution which says that municipal authority should not be compromised in the performance of their functions.

Also, S81 attempts to override the Constitution by using the phrase 'despite any other law'. In addition, its reference to indigenous law is problematic as it has never been codified and citizens are not able to simply refer to it to determine their rights.

Mr Nape Nchabeleng then continued that the local government in the rural areas is best placed to deal with the huge infrastructural backlog in the rural areas.

In addition, the fact that women are unable to participate in traditional authorities unless represented by their husbands (in terms of some traditional customs), is unconstitutional. He stated that although they do not wish to undermine or underestimate the traditional leaders, their role and functions have to be subject to the Constitution.

Coalition of Traditional Leaders
Nkosi Mpiyezintombi Mzimela representing the Coalition said the Bill before the Committee was a culmination of a series of discussions between the government and traditional leaders. He stressed that these discussions were always undertaken in good faith, expressing concerns that some stakeholders "do not want traditional leaders to be heard" on matters affecting them.

For the past nine months traditional leaders had been involved in negotiations with the government to ensure that elections take place. A letter from the President assured traditional leaders of his commitment in ensuring that their role in local government is not eroded. Nkosi Mzimela said it should not appear as if traditional leaders are not helpful in finding a solution to the crisis. They have presented proposals for a two-tier system allowing for an osmosis between traditional and municipal authorities in areas where there is an overlap. The proposed system would promote co-existence of traditional leadership and Western-style municipalities.

He said traditional leaders are happy that there is an improvement in the Bill. The discussions have shown that it would be impossible to remedy the clash between roles and powers of traditional leadership and municipalities without amending the Constitution. These discussions sought an interim solution. The reformulated provisions of the Bill still do not meet the concerns of traditional leaders but show an improvement from what the Minister and the Department had earlier presented. The Bill is welcomed as a beginning to a solution until the amendment of the Constitution.

Mr Mzimela said traditional leaders urge the Committee to focus on the new version of the Bill and disregard the earlier version. He expressed the view that the blame of traditional authority areas being underdeveloped cannot be laid on traditional leaders but needs to be investigated. The concern of traditional leaders is that the tension arising from the dispute on powers and functions of traditional leaders and municipalities is still not resolved.

South African Local Government Association (SALGA)
Mr Madlala of SALGA emphasised that they would not want to diminish the role of traditional leaders. He said it appears that the issue is not the amendment of the Municipal Structures Act but the Constitution. It would not be sufficient even if the matters expressed in the Bill were extended to meet the concerns of the traditional leaders. There is a need to reconsider whether the 20% representation that had been thought of as sufficient, was enough. Mr Madlala's view was that this might not be sufficient and needs to be revisited. He said SALGA's proposal is that the elections should go ahead as planned.

Discussion
A member of SALGA asked if the process that was being followed in dealing with the Bill was right. He said it is crucial that if this is a Section 76 Bill, NCOP representatives would have to consult with their provincial legislatures.

The Chairperson said this is not a question to be dealt with at the hearings but that the Committee would consider the issue.

Mr Nonkonyana (ANC) urged everyone to look beyond their personal interests in dealing with the Bill. He said members should not attempt to answer questions around the constitutionality of the Bill until such time it has been certified by law advisors. The Chairperson agreed with Mr Nonkonyana.

Mr Smith (IFP) asked what the nature of the assurances given to traditional leaders was. Had it been promised that the powers of traditional leaders would be retained?

Mr Mzimela said traditional leaders realise that concessions have been made in the Bill, but the conflict has not yet been defused. He said the initial concern had been the demarcation process but it shifted to the obliteration of powers and functions of traditional leaders. In discussions with traditional leaders, the President had said he would not like the role of traditional leaders to be diminished. Mr Mzimela quoted the President as having given an assurance that if the Constitution is seen to be the cause of diminishing of the role of traditional leaders, it would have to be amended. The President made an appeal that the processes already in place should continue. Discussions during the first phase had addressed the problem of local government. The next phase would also deal with other outstanding issues that are of concern to traditional leaders.

A member of the Gender Commission wanted to know what the coalition of traditional leaders referred to when it talked of a crisis in the making that needed to be averted. He also wanted to find out how many women, if any, had participated in the discussions between the traditional leaders and government.

The Chairperson said some of the issues raised by the Gender Commission could be raised in the next day's meeting - as the Committee has always allowed stakeholders to participate in committee discussion and thinks there should be the same latitude even this time. He said the Committee still awaits legal advice on the Bill and as soon as that is finalised it would resume consideration of the Bill on 17 November 2000. The meeting was adjourned.

Appendix 1:
Tabled Bill

BILL
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
follows: -

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.

Short title
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

1. BACKGROUND
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
· The Presidency.
· 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
None

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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