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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT MEETING
14 May 2002
CROSSING OF THE FLOOR: DELIBERATIONS
Chairperson: Adv De Lange (ANC)
Mr Y Carrim (ANC)
Documents handed out:
"Crossing the floor" legislation (as Certified) March 2002
Constitution of RSA Amendment & Second Amendment Bills, 2002:
Local Government: Municipal Structures Act
Local Government: Municipal Structures Amendment Bill
Democratic Alliance and Michael Sean Moriarty v Masondo Amos N.O and Minister of Provincial and Local Government
Submission by Geraldine Smith
Categories of Municipalities
Correspondence from IDASA Executive Director: Paul Graham
Submission by Michael Evans
Local Government Municipal Structures Act 1998
Local Government Municipal Structures Act
The Committees continued deliberations on the legislation which will facilitate Members crossing the floor.
Adv De Lange (ANC) opened the meeting by explaining that Mr Carrim would be chairing the Provincial and Local Government session of the meeting. For the benefit of the members that had not attended the meeting on Thursday 16 May, he went on to outline the programme of the day. He stated that they would be completing the programme today, and that the remaining issues to be dealt with were as follows. The local government issue and the NCOP issue. He added that the two Departments would be given sufficient time to draft amendments, and he would make these available to the Committee upon their receipt. He noted that the voting on the Bills would occur on 6 June 2001, and that the Bills would be debated on 11 June 2001. In that regard, he explained that the Justice committee would have seven debates, and that there would be one big debate concerning the four bills. He ended by saying that Friday fourteen June would be dedicated to dealing with the NCOP Bills.
Adv De Lange (ANC) noted that they had received more submissions, and that he had just received one of them. He explained that these would be circulated to the Committee Members.
Adv De Lange (ANC) asked the floor whether they had any comments, but there were none.
Mr Carrim began by stating that he hoped that the programme that had just been mentioned would be circulated to the relevant committees.
Mr Carrim explained that they would be dealing with the Local Government Municipal Structures Amendment Bill (LGMSA Bill), and with the relevant sections of the Municipal Structures Act. He highlighted the fact that the LGMSA Bill had been allocated to his committee, and that the 3remaining Bills had been allocated to the Justice committee. He explained that Adv De Lange (ANC) and he had decided that it would be more efficient to discuss the Bills together. Nevertheless, he stated that the 2committees would still be required to submit separate reports.
Mr Carrim noted that some of the amendments had been more or less demarcated during the course of the week. In relation to the amendments concerning the structures, he explained that the department had completed a number of amendments the night before. However, the department still had a referral process to conduct, and the result was that the amendments would only be made available to the committee on Monday 20 May 2001.
Mr Carrim stated that to the best of his knowledge, the meeting today would be dealing with the various consequences to crossing the floor that would require amendments. He went on to list them:
The time frame within which first Council meetings are convened.
The reconstitution of the committees of the Council.
The consequences of the reconstitution of sub-committees.
The effect on the local level for the District Councils.
He asked whether there were any other issues.
Adv De Lange (ANC) mentioned the issue of prior notice.
Mr Carrim stated that when Members cross the floor crossing of the floor and the fifteen days have lapsed, the current position in terms of the MSA was that various sections required notice to be provided. He explained that these would now be superceded by an amendment that would allow such notice requirements to be forgone in certain instances.
Time frame within which the first Council meetings are convened
Mr Carrim moved on to deal with the issues surrounding the convening of the first Council Meeting after the four days have lapsed.
Dr Bouwer explained that the only provision in the Municipal Structures Act related to the first meeting of the elected Council. This meant that the crossing would not create a new Council. Nevertheless, he stated that this had the potential to lead to the interference of the internal relationships within the Municipal Council. As a result, it could be potentially dangerous to enforce the crossing of the floor. However, he noted that in light of the amendments in the Constitution Bill, the implication was that the first meeting of Council would be automatically provided for. It was for this reason that he felt additional arrangements would not be necessary.
Adv De Lange (ANC) wanted to know exactly what would be proposed.
Mr Carrim asked the floor whether they had any responses.
Mrr Carrim stated that he wanted to raise the time issue.
Dr Bouwer explained that the period was fourteen days after an election. The fourteen day period would suffice if it were necessary only in respect of the first meeting.
Mr Carrim wanted to know why they could not just state that the Council must meet within either fourteen or twenty one days after the fifteen days have passed. He added that this would also be in relation to the structures, and suggested that this would provide a better alternative in comparison to the reconstitution of the Council.
Mr Bala suggested that the two issues would have to be separated.
A Member stated that the fourteen day period would suffice because it would be inappropriate for the Council to reconvene before the election results are published. He added that it would not be necessary to put a time frame in relation to the reconstitution of the Council.
Mr Carrim thanked the member for the comment made and stated that the issue had been discussed at length.
Mr Kompela agreed with the previous member and proposed that they adopt the fourteen day period following the publishing of election results.
Adv De Lange (ANC) felt that the two issues would have to be separated. Nevertheless, he suggested that they reduce the time frame to seven days.
Mr Carrim turned to Salga and asked him what he felt about the seven day period.
Salga did not think that seven days would be a problem.
Dr Bouwer stated that there would be many practicalities to consider when dealing with the seven day period. He said that it was those very practical reasons that prompted him not to fix the date of the firstt meeting, but rather to place a time limit upon the reconstitution of the Council.
Adv De Lange (ANC) emphasized the fact that the Committee should not complicate matters. He explained that the reconstitution would only be in relation to the members, and not to the positions held. He stated that theoretically Dr Bouwer was correct. However, he noted that a sanction had not been attached to the rule. The result would be that all practicalities could be taken care of in the first meeting, and begged the Committee not to be overcautious.
Ms Bornman (DP) referred to the proportionality issue that had been dealt with the day before, and stated that she needed clarity. She wanted to know whether the reconstitution would be on a proportional basis and not on voter basis.
Mr Carrim explained that the correlation between the voting and the composition of the Council would begin to become less correlated upon the crossing of the floor. He stated that this was presupposed. Nevertheless, he added that the rest of the MSA would kick in. He noted, however, that he did share the concern that had been raised.
Mr Carrim directed Dr Bouwer to summarise what had been agreed upon.
Dr Bouwer stated that the Committee had agreed to amend S 29 MSA in order to enforce a meeting within seven days following the public notification of the membership composition.
Mr Carrim suggested raising the time frame to ten days.
The Committee did not agree with his suggestion.
Mr Carrim stated that the amendment would remain at seven days.
Dr Bouwer explained that the District Councils comprised of representatives from the Local Councils. He proposed that this would mean that the old District Councils would also have to be reconstituted, and that in this way the seven day period would also have to apply in respect of District Councils.
Dr Bouwer noted that the proposed amendment to the Constitution stipulated a 30day period.
Mr Carrim asked the floor whether there were comments to be made.
Adv De Lange (ANC) stated that it would be incorrect to conflict the first meeting of the Council with reconstitution. He added that in the event of any problems, a seven day period should be granted to the Local Councils. Following this, he stated that the District Councils should then have to meet within seven days of the meeting of the Local Councils.
Mr Carrim stated that his line of thought followed that given by Adv De Lange (ANC).
Mr Bali agreed with Adv De Lange (ANC).
Dr Delport (DP) called for assistance. He stated that he really could not understand the problem. He questioned the necessity of all the elaborate detail relating to reconstitution because they were merely dealing with changes in faces.
Mr Carrim responded that Mr Delport (DP) was partly correct by recognizing the fact that the term 'reconstitution' was being used very loosely. However, he stated that there were bigger issues to consider, such as the fact that District Municipalities were becoming more powerful. He added that the matter was also slightly more complex than Dr Delport was suggesting. Nevertheless, he acknowledged the fact that it was not as complex as people were making it seem.
Mr Kompela agreed that the first seven days could not run concurrently with the District Councils because this would not be practical.
Mr Carrim asked whether there were any contrary views.
The floor did not have any contrary views to raise.
Mr Mongeni agreed with the proposals that had been put forward. However, he felt that the problem related to the agenda of the first meeting.
Mr Carrim replied that those would be both practical and legal problems.
Dr Bouwer thanked Adv De Lange (ANC) for bringing his attention to a bigger and more complicated matter. In that regard, he asked the Committee for time to conduct further investigations.
How to reconstitute the committees of Councils
Dr Bouwer explained that within District Councils, 40% of the members were directly elected whilst the remaining 60% were indirectly elected. He stated that crossing of the floor could only apply in respect of the 40%. In light of this therefore, the seven days would only apply if the 40% cross the floor. He emphasized the fact that the crossing could not occur for the 60%. He commented on the fact that the Local Councils would have 30days to reconstitute in terms of the Bill. Forcing the District Councils to hold their meetings before that period would not be representative.
Adv De Lange (ANC) responded that Dr Bouwer was mixing things up. He stated that they were dealing not with a reconstitution, but with changes in either numbers or seats. He added that it would be possible therefore to reconstitute the Local Councils during the 1st meeting. As a result, he did not see the reason why the District Councils would also have to be reconstituted. He noted that the delegation of the 60% could be changed at any time.
Mr Bouwer reiterated the fact that a person crossing the floor takes with him his 'jacket, bench and seat'. A result thereof was that faces would not change. However, he explained that with the 60% in the District Councils, it would be possible for faces to change.
Adv De Lange (ANC) stated that all that could have happened already. He said that Dr Bouwer was labouring under the assumption that Local Councils and District Councils were the same, and that he should not make such an assumption.
Mr Bouwer questioned the fairness in giving Local Councils the luxury of 30days.
Adv De Lange (ANC) explained that they had agreed to the first proposition advanced by Dr Bouwer. He stated that they had added the 30day legal space in order to deal with any practicalities.
A Member referred to the suggestion made by Adv De Lange (ANC) of allowing fourteen days within the 30day period, and stated that he could not see any problems with it.
Mr Mongeni suggested that the Committee should take it as if it is normal when municipalities are changing delegations to the District Councils.
Mr Carrim noted that Mr Mongeni had a sense of what was being said. He stated that they would reach a conclusion relating to the seven day or fourteen day period at a later stage, and asked the committee whether the matter was settled.
Mr Jeffery (ANC) referred to the analogy with the bi-election process and explained that they were dealing with a different situation because with the bi-elections, the person that occupied the seat would be gone.
Issue of Prior Notice
Mr Carrim stated that they would deal with the issue quickly. He confirmed that although prior notice would be required when removing office bearers in the Council from their positions, the suggestion was that the requirement would not be necessary in this context.
Dr Bouwer agreed.
Adv De Lange (ANC) stated that it would be easier just to draft a clause indicating that position.
Mr Carrim asked the members of the Provincial and Local Government committee to take a copy of the MSA home with them over the weekend, and to determine:
Whether the issue of prior notice had been fully dealt with in relation to the Act.
The extent to which the seven /fourteen day period would be consistent with the rest of the Bill.
Consequences of the reconstitution on sub-committees
Mr Carrim moved on to the next issue. He noted that it was probably the most complex. He said that the Department had really applied its mind in that context. He explained that when reference had been made to committees, the reference had been to committees in terms of S 160 (8) of the Constitution. He went on to say that, they had established two structures in the local government model:
The constitution of the government of the local municipality.
The fact that sub-Councils would set up their own committees. He added that it was in this context that S 160 (8) of the Constitution did not necessarily apply.
Mr Carrim explained why sub-Councils would be created:
In order to decentralize administration
In order to allow more direct contact between the voter and the elected representative.
Nevertheless, he explained that the relationship between the Council and the sub-Councils had to be reconstituted. He referred the committee to Schedule 4 of the MSA that set out the constitution of the sub-Councils, and explained that they would now have to simplify the system in light of crossing of the floor. He noted that the committee members would all be receiving a written copy of the proposed amendments.
Mr Mr Selesho Selesho said that he would be dealing with the conceptual issue and that Dr Bouwer would deal with the legalities. He stated that Mr Carrim had already laid the foundations relating to the matter. Nevertheless, he explained that in terms of the MSA, provision had been made for the creation of sub-Councils only in metropolitan areas. He noted that there would be exceptions, and he referred the committee to S 8 of the MSA. He went on to say that, the current position was that only 2metros, namely Cape Town and Durban, had the power to establish sub-Councils.
Mr Selesho stated that two issues would be relevant as a result thereof: -
Outlining the scheme of the sub-Councils.
In relation to this aspect, he explained that the sub-Councils were essentially a cluster of wards because of the fact that the metro were granted the power to determine which wards would be clustered. However, he stated that the principle of Adjacency would have to apply concerning the composition in terms of the MSA.
Mr Selesho added that the Constitution entrenched proportionality. Any crossing of the floor at the metro Council level would have a ripple effect on the composition of the sub-Council. He stated that their interim thought in this regard had been that proportionality would have to be retained as much as possible, and that this would have to be in terms of S 63 of the MSA.
The allocation of members to seats in sub-Councils from metros
Mr Selesho stated that it would only be possible to tamper with the PR component and that the Ward component could not be manipulated in any way. He suggested that in the instance of crossing of the floor, the decision should be left to the metro itself. He further suggested that a rider would be added stipulating that compliance with S 160 (8) of the Constitution would be necessary in order to ensure fair representation. He explained that this would mean that there would still be an almost equal representation between the Ward and PR components in the sub-Councils. He went on to say that, metros would be able to do this by way of by-laws, and that this would mean that they would not have the right to determine the mechanism for dealing with the PR seats.
Mr Selesho stated that the Committee would have to amend S62, S63 and S66 of the MSA as the result thereof.
The term of office in terms of S66 of the MSA
He stated that they wished to provide the metros with another opportunity to be able to tamper with that clause by allowing them to rearrange positions to the sub-Council level. Thus he said that it would be necessary to amend S66 MSA in order to allow for a change in the term of office following the crossing of the floor.
The reconstitution of the sub-Councils
Mr Selesho explained that it would be very difficult for a new government in the metro to reconstitute the sub-Council following the crossing of the floor. In light of this, they were thinking of a transitional clause in terms of which allocation to seats would be possible by way of resolution. He noted that the transitional period would run from the crossing of the floor to the amendment of the by-laws, and that this would be approximately four months.
Mr Selesho ended by saying that such a framework would both enable the retaining of proportionality at the sub-Council level, whilst also taking care of the crossing of the floor at a metro level.
Mr Carrim suggested that he would better serve the Committee by concretely taking them through all the relevant necessary amendments in that regard. He put the proposition before the floor.
The Committee agreed with the proposal that had been put forward.
Mr Carrim explained that they would be dealing with S 61 onwards. He asked Mr Selesho to explain his intentions.
Mr Selesho began with S 63 of the MSA. He explained that in terms of S 63 (1) (a), automatic membership to the sub-Council would be guaranteed. He went on to say that S 63 (1) (b) dealt with the proportionality issue. Nevertheless, he proposed an amendment to S 63 (2) (b), which at this stage provided that metro decisions regarding the PR in the sub-Councils would have to comply with Schedule 4. He explained that in that regard, Schedule 4 would have to be amended in order to read that "the seats in S 63 (1) (b) components" would have to comply with the fair representation requirement in terms of S 160 (8) of the Constitution. This would be instead of the current quota system.
Mr Selesho pointed out that the actual amendment to S 63(2) (b) would therefore require appointment in accordance with the amended Schedule 4.
Mr Carrim referred the committee to Schedule 4 on the last unmarked page of the Bill. He confirmed that the intention would be to delete the quotas.
Mr Selesho agreed.
Mr Carrim explained that they would be deleting Item 1 of Schedule 4, providing for quotas, and that they would be turning the provision into a broad guideline in terms of S 160 (8) of the Constitution. He noted that he was personally not satisfied with the amendment, but that there was no alternative solution.
Adv De Lange (ANC) suggested that the problem had to be looked at simply. In light of that, crossing the floor would mean that the representative in terms of the proportionality reached by the elections would no longer exist. He added that in terms of S62:
The vision of the sub-Councils should have as many as in the original elections, and that this principle remained unchanged.
The issue was that he Ward Councillors in the sub-Councils would have to be there. He explained that upon crossing the floor, by virtue of the fact that the sub-Council would have been locked into the votes, proportionality clearly could no longer be used.
He stated that they would have to allow the other Councils:
The use of a word better than 'fairly represented'. In that regard, he suggested the phrase 'consistent with democracy', and pointed out that the possibility existed that stronger wording would be necessary.
An amendment to Schedule 4.
An amendment to the by-law issue is S 62.
He explained that the only issue that was really on the table was the need to find suitable wording in order to ensure that manipulation would not occur.
Mr Carrim interrupted Adv De Lange (ANC) and asked that they finish the process. He explained that he was trying to make the Committee acutely aware of what was happening because many of them did not fully understand. He stated that he would prefer to further deal with the amendments. He noted that they would be amending S 62 and S 63 (2) (b), and asked for the other amendments.
Mr Selesho stated that Dr Bouwer would round that discussion off.
Dr Bouwer referred to the notion concerning the wording. He explained that the proposed wording had been directly taken from the Constitution, and that it would not be possible to tighten the wording because the possibility of a homogenous clustering of wards in a sub-Council existed. He suggested that a different proposal altogether would be necessary.
Dr Bouwer referred to the mechanism in the by-law and explained that this would be further enforced by imposing the requirement that the counselors must be in terms of the mechanism. He noted that the problem lay in the present position and the result thereof was that a transitional arrangement would be necessary.
Mr Carrim stated that the Committee essentially understood what had been said. He proposed that the Committee grant the Department the opportunity to complete their investigations before finalizing the matter.
Dr Bouwer added that the other reality would be that the opportunity to reconstitute would make it difficult to comply with the present S 66. He further proposed replacing the PR component for the remainder of the existing term.
Mr Selesho said that the comments made by Dr Bouwer had rounded off the discussion surrounding the possible amendments to the MSA. He noted that in any event, they would have amended Schedule 4 through a different form because the current approach was simply not workable.
Dr Bouwer stated that the existing Item 1 and Item 2 of Schedule 4 would be replaced by a new Item 1, the fair representation requirement. He added that the existing Item 3, Item 4 and Item 5 would then just move up one place. He emphasized that the only amendment to be effected related to the replacement of Item 1 and Item 2.
Dr Bouwer asked the committee to think back to the meeting held with the IEC, and to remember the fact that the IEC had noted that an amendment to S 2(7) of the MSA could result in a 'free for all' type situation. He stated that it would be necessary to co-ordinate the amendment of the 4Bills as a result thereof. He noted that it would be necessary to amend the existing S2f of the MSA.
Mr Carrim responded that Dr Bouwer was dealing with a separate issue and that they would come back to it at a later stage.
Mr Carrim explained that the committee had only dealt with three of the items on the agenda. However, he quickly summarized the position that had been reached: -
a) Amending S 62 to require that when formulating the by-laws, a mechanism for the allocation of the PR component to the sub-Council must be included.
b) Amendment of S 63 in order to ensure that this is done consistently with Schedule 4.
c) Provision for term of office in terms of S 66.
d) Deletion of the quota system in terms of Schedule 4. He noted that the Democratic Party would inform the committee regarding possible alternatives.
e) Compliance with S 160 (8) of the Constitution. He noted the existence of the possibility that a tighter relationship would be necessary.
f) Item 2 Schedule 4 falls away.
Mr Carrim appreciated the fact that not all the members of the Provincial and Local Government Portfolio Committee had applied their minds to the issue. He added that all they could offer at that stage would be their tentative view points.
Mr Carrim suggested giving the Cape Town people the first opportunity to speak because they had very practical views.
Salga explained that the current Schedule 4 had caused problems. However, he could not suggest a possible alternative, and in that regard noted that the flexibility afforded by the fair representation requirement would probably be the best alternative. Nevertheless, he noted that the possibility existed that the notion would have to be tightened up.
Mr Carrim suggested that they had to be flexible within bounds. He stated that it would be inappropriate for Durban to adopt measures that are completely different from those used in Cape Town. He added that they were not dealing only with Durban and Cape Town, and that the aim would be to have Councils in all the metros.
A Member agreed with the amendments before the committee. However, he stated that he needed clarity concerning the window period following the fifteen days. Nevertheless, he agreed in principle with the amendment of the by-laws.
Dr Bouwer explained that he was dealing with the time within which to reconstitute the structures following the crossing of the floor. He stated that immediately upon the Bills becoming law, no Council would have had the opportunity to provide for by-laws in order to add the mechanism. It was for this reason that a window period would be necessary.
Pier questioned why the window period should not coincide with the seven day period.
Dr Bouwer rectified the position. He explained that he window period would only be for crossing of the floor. He stated that there would be 30days within which to carry out certain objectives, and that the provision would be made only for that once-off eventuality.
A Member explained that he was referring to the first seven days, and he suggested using that clause to override the by-laws.
Adv De Lange (ANC) explained that the Constitution required reconstitution within 30days. Thus, in order to allow the reconstitution of sub-Councils within the 30days in order to comply with the Constitution, it would be necessary to loosen the provision. He noted, however, that the Member had been correct in a sense because the 'quick' Councils would be likely to reconstitute within the first seven days.
Mr Jeffery (ANC) was not sure of the need to include the section guaranteed in the Constitution into Schedule 4. He explained that the Constitution would apply to all laws in any case.
Mr Jeffery (ANC) stated that the MSA would obviously override the by-laws. He felt that it was for this reason that the problems that had been identified would be avoided.
Mr Jeffery (ANC) wanted to know why the department had opted for by-laws in order to create sub-Councils. He explained that the aim would surely be to ensure fair representation in the sub-Councils following crossing of the floor. However, he felt that leaving the matter too much to the metros could result in bias. Thus he stated that it would be preferable to come up with a better alternative.
Mr Carrim responded that the comments made by Mr Jeffery (ANC) had been very helpful. He explained that the by-laws had been used precisely for two reasons:
To encourage public consultation.
To avoid undue manipulation
He noted that a suggestion had been made to give the Demarcation Board a say in the shaping of the Councils. Nevertheless, he stated that they had been unable to tighten the position. He added that it was for this reason that he was also compelled by what Mr Jeffery (ANC) had said about the flexible approach.
Mr Carrim asked the floor whether there were any comments on the issue.
Ms Borman (DP) mentioned that all the members would be aware of S 160 (8) of the Constitution, and what had happened when the provision was taken to court. She stated that they had been proven wrong, and that 'fair' did not necessarily apply as a result thereof.
Mr Carrim directed the Committee to deal with the proposed Item 1 of Schedule 4.
Mr Masutha began by saying that his initial difficulty had been whether the concept of S 160 (8) of the Constitution would be adopted. However, he explained that Dr Bouwer had said that he intended to exclude subsection (a). He added that Dr Bouwer had also alluded to him that the Constitutional Court in interpreting subsection (a) had included the composition of the structure. Nevertheless, his understanding was that the principle of 'fair representation' itself had not been interpreted in the case because it had not been the subject of the dispute. The result was that they were left with a situation where the phrase had not been defined, and this would allow the deferment of a matter by simply referring it to S 160 (8) of the Constitution.
A member stated that a specific sub clause in the Constitution referred to the principle of fair representation. Thus he could not understand why the committee had a problem with S 160 (8) of the Constitution. He added that the court case that had been mentioned was not applicable because it was a mayoral case, and noted that the principle of fair representation also applied to S 44.
Mr Jeffery (ANC) explained that he did not have a problem with the principle. However, his point was that it would apply in any case. Thus he did not see the need to include it. He added that such an approach could be taken if the committee intended to further the principle because there would be no value in simply repeating the Constitution.
Mr Carrim responded that a policy decision reached by his committee was that they would repeat verbatim the sections of the Constitution in all laws that they pass, as irrelevant as this may seem.
A member added that the problem had been solved by S 160 (8) of the Constitution.
Mr Masutha needed guidance from the Committee. He explained that his understanding was that the sub-Councils were not contemplated in S 160 (8) of the Constitution. As a result, he felt that the possibility existed that the Committee would not be justified in assuming that they did apply.
Mr Carrim emphasised the fact that they had never intended for it to be a S 160 (8) committee. He explained that the original draft had referred to a sub-structure. However, the Committee had been persuaded to drop that word. He stated that he was being categorically clear because he did not want the point to be raised again. He agreed that the law could possibly be susceptible to a variety of meanings. Nevertheless, he did not want the Committee to delve into such issues.
Mr Carrim stated that he was not sure whether the Johannesburg court case would apply. Nevertheless, he could not see any reason why the Committee should not use the wording that had been suggested by Adv De Lange. With regards to S 160 (8) (b) of the Constitution, the committee should add the phrase "consistent with democracy" to the amendment. Without the need for further discussions, he noted that the position would have to be tightened up in order to limit the options.
Adv De Lange (ANC) felt that it would be necessary to be very clear when dealing with the matter. He explained that the legislation had been drafted strictly on the basis of the results of an election, and thus on the basis that crossing of the floor would not occur. He stated that there were 2components:
The question relating to the proportionality of the votes passes in the area of the sub-Council vis-à-vis the other components.
The proportionality lost the moment crossing of the floor is introduced. In this regard, he noted that proportionality was linked to the votes that each party had received, and it would be important to understand that only the Ward Councils would be able to move around.
As a result, he explained that S 63 (b) MSA would have to change. He stated that it would not be possible to include more detail as had been alluded to by a previous member, because it would not be possible to predict the outcomes.
Adv De Lange explained that the drafting of the Bill did not repeat S 160 (8) of the Constitution. Rather, the amendment had used only some of the wording used in the Constitution. He added that the members would have to realize that the model could never be exactly the same. In light of this, he felt that the use of the words "consistent with democracy" would offer the best solution.
Mr Carrim stated that when Mr Jeffery (ANC) had spoken of more detail, he could have been referring to a technical formula, which would not be possible, or which would make the detail more flexible within a framework consistent South Africa. He stated that he welcomed this meaning, and that he would welcome any amendments, which adopt such thinking.
Mr Masutha felt that the crossing of the floor would usher in a completely new meaning of democracy. Thus, he proposed the addition of the words 'consistent with the objects of S 15(8) (a) of the Constitution to the formula. He explained that this would show that one is dealing with a new context.
Mr Carrim responded that they would debate that issue upon receiving the amendments.
As far as he could see, the discussion relating to sub-Councils had been concluded. He noted that the issue with the first period had also been covered.
Dr Bouwer responded that the 30day period would still be under consideration. He added that the phrase 'consistent with democracy' had initially been left out. However, there would be no harm in its inclusion.
From a practical point of view, he explained that the Councils were used to applying S 160 (8) of the Constitution. One would not have to test the result of the by-law, but rather the by-law itself. Thus, he stated that the test would have to be strengthened. It would be inappropriate to include a reference to S 15 (a).
Effect on the local level for the District Councils
Mr Carrim moved on to deal with the District Councils. He explained that there had been two proposals:
An amendment allowing the District Councils to meet after the fifteen day period to organize its delegation if crossing of the floor has occurred.
That such an amendment would not be necessary because it had already been catered for by the municipal structures.
He explained that the majority opinion was that the issues surrounding District Councils would have to be addressed. He stated that District Councils were very crucial, and that the idea was that they would become more powerful over time. Thus, the Committee would have to get it right and reach a concrete decision on the matter.
Dr Bouwer explained that the Committee would have to distinguish between:
The need for an amendment.
The opportunity to reconstitute the District Councils.
Adv De Lange (ANC) stated that the matter was currently catered for.
Selga said that they would possibly need to bring the Schedule in line.
Dr Bouwer reminded the committee that 60% of the District Councils were elected councillors, whilst the remaining 40% were the appointed councillors.
Adv De Lange (ANC) stated that the Constitution had referred only to the 60%.
Selga added that the position could possibly have to be amended in terms of S 26 MSA.
Mr Selesho said that they appeared to be dealing with the similar principle that they had agreed upon in relation to the sub-Councils. Thus he stated that the possibility of an amendment was real.
Dr Bouwer explained that what the committee had anticipated with regards to S 66 MSA would also have to be anticipated for S 26 MSA.
Mr Carrim asked whether there were any other amendments.
Dr Bouwer referred to Item 2 (fourteen) of Schedule 2 dealing with the manner of election. He explained that he provision would have to be changed to deal with the manner of appointment. He noted that because he had highlighted a marginal note, the amendment could probably be better dealt with in the General Law Amendment Act. He added that the issue did not really impact on crossing of the floor because it was simply the technical correction of a heading.
Mr Carrim agreed to the amendment provided that despite whichever correcting mechanism would be employed, the amendment would be made neatly.
Selga stated that there were a number of other items that would also have to be clarified.
Mr Carrim therefore directed the team from the department to look into the proposals.
Mr Carrim outlined the practical issues arising from the submissions. He said that the most important issue to note had been the effect of the Bill. He explained that the Bill would prejudice minority parties in a local council. Thus in the event of crossing the floor, he stated that minority party members could be excluded. As a result, he explained that he provision would have to be very clear, and would have to be to the benefit of both majority and minority parties.
Mr Carrim asked the Committee whether there were any other issues, but there were none.
Mr Smit wanted clarification with regards to the statement that had just been made.
Mr Carrim explained that the minority parties would be prejudiced.
Mr Selesho said that he had thought that the arrangement between the District Councils and the Local Municipalities would not automatically result in the loss of a seat.
Mr Carrim explained that he was simply making the point that the minority parties would be disadvantaged. He stated that he had raised the issue because the committee had hoped to respond to the submissions. Nevertheless, he said that in fairness there really was not anything that the committee could do. However, he had the responsibility as Chairperson to inform the committee of any concerns that had been raised.
Mr Smit did not think that the matter was that simple. He explained that if the committee was changing all the other structures, it would only be fair to revisit the provisions dealing with the concerns that had been raised. He stated that the mere fact that entitled representation existed meant that the committee would have to amend the situation.
Mr Bala emphasized that the fact one's seat would inevitably be lost in the event of crossing of the floor. He added that leaving the decision to the Council allowed the principle of majoritarianismlism to operate. He stated that this was politics was all about, and that democracy worked in such a manner.
Mr Carrim added that the point had been made was that a majority party member would be able to retain a seat when crossing the floor. However, minority party members would have no resort. He noted, however, that instances would exist where the majority party members would not have an absolute majority.
Adv De Lange (ANC) felt that the clause would logically have to affect all parties.
Mr Carrim did not wholly agree.
Adv De Lange (ANC) explained that even when dealing with majority parties, the principle would have to affect all parties in the event of shifting of all the parties. However, he explained as it stood, the small parties would disappear, and that this position would have to be changed. He stated that it would be foolish to think that the problem had been dealt with. However, the reality was that they would only be able to deal with the biggest issues. He stated that he had no doubt that future consequential amendments would have to be made, and that this was because the MSA had been drafted on the premise that crossing of the floor did not work. Thus, he explained that the committee would have to concentrate on the main issues at this stage. He said that the District Council issue was relevant. However, the Committee would not be able to pass prejudicial law. He therefore suggested that the Department would have to look into the matter.
Mr Carrim stated that it certainly was true that the majority parties were benefited under the current position. He referred the Committee to the submission from the University of Western Cape. Nevertheless, he said that he could not presently offer a solution, and urged the Department to look into the matter.
Dr Bouwer explained that he had to rectify a fundamental error. He stated that the appointment of local municipality representatives did not entitle one to a seat. On the other hand, the part seats would be allocated. He felt that as a result thereof, the adoption of the proposed trigger mechanism in terms of the Constitutional amendment would solve the problem.
Mr Carrim said that nevertheless, the reality was that the majority parties would shape the recomposition. He explained that the ground had been covered in political term, and that the legal technical issues that Dr Bouwer had raised were not helpful to the committee.
Mr Carrim noted that he agreed with the approach that had been suggested by Adv De Lange.
A Member highlighted the fact that the perception of the majority parties would be based on quotas. Nevertheless, he reminded the Committee that some parties would not submit party lists.
Mr Carrim explained that when the Bill had been introduced, they had asked the Minister for a system that would take into account the position occupied by minority parties. However, he stated that the present situation was very different.
Ms Mabe explained that the minority party problem could also affect majority parties on the District Council level. She said that although the majority party could be from the majority party in the Local Council, the new majority party would still prevail.
Mr Carrim reminded the Committee that the statistics they had used had come from the UWC Law Centre. However, the figures were inaccurate, and he stated that he was currently attempting to rectify the position.
Mr Carrim was glad to say that most of his work was over. He apologized for the length of time taken in finalizing the issues, and said that the agenda had been dealt with very quickly in relation to the standards of his committee. He noted that he would have to debate separately with the DPLG and Adv De Lange.
Adv De Lange (ANC) could not understand why Mr Carrim had apologized for the time taken up. He explained that he meeting today had been dedicated to dealing with the Provincial and Local Government issues.
Mr Carrim stated that any members of the Justice Committee who wished to join the Local Government Committee would be most welcome.
Adv De Lange (ANC) added that the same applied to his Committee.
Adv De Lange (ANC) began by noting that CONCROSS 39 was a purely unmandated document. He explained that the document had been given to the committee in order for them to be able to use it in their Monday groups, and he said that the article set out the proposal for the first crossing of the floor.
Adv De Lange (ANC) moved on to the last issue on the agenda, the NCOP component. He explained that this referred to the Second Constitutional amendment Bill that sought to change S 61 of the Constitution. He said that the amendment would substitute S 61 (2) and S 61 (3) to read S 61 (2) (d). He noted that except for Mr Jeffery (ANC), he could not remember the committee having raised any other problems with the Bill.
Mr Jeffery (ANC) explained that his problem was more consequential, and explained that he was concerned with the fact that the wording implied that the entire provincial delegation would be dissolved.
Adv De Lange suggested that Mr Jeffery (ANC) and he would meet with Mr De Lange in order to further discuss the problem.
Adv De Lange (ANC) asked the floor whether there were any other issues, particularly from the National Council of Provinces. He pointed out that a special delegate from the NCOP would not be able to cross the floor. However, one had to be aware that this did not mean that any special delegate in the province would not be able to cross the floor.
Mr Lever raised a technical issue. He wanted to know up to which point the seat would be retained. He noted that he did have another issue to raise, but that he would first discuss it with his delegation before bringing it before the committee.
Adv De Lange (ANC) asked him to explain the first point.
Mr Lever explained that a provincial legislature member would be deemed to have lost his/her seat upon crossing the floor. Thus he wanted to know up to which point in time the seat would be retained.
Dr Delport (DP) used a practical example to illustrate the point that had been made by the previous member. He stated that if all the DP members were to cross to the DA, and then wished to rename the city as DA delegates, they would want to ensure that the seats in the NCOP would be retained until such time as they would be sworn into the new party. He noted that Members would not want to lose their salary.
Ms Majodina sought clarity from the Committee. She wanted to know whether this meant that the mercy of the permanent delegations would then lie with the forces of the provincial legislature.
Adv De Lange affirmed that position. He added that it was for this reason that one would not be able to cross the floor in the NCOP.
Mr Jeffery (ANC) stated that they were actually referring to the 6permanent delegates. He suggested that the possibility existed that the situation would work better in practice, in contrast to the views carried by the committee.
Adv De Lange turned to the members from the provinces and explained that they would have to hold on to their members between 6 June 2002 and fourteen June 2002. He stated that it was the reality of the situation, and that they would have to attempt to ensure that they would not lose members.
Mr Lever added that the concern would not be restricted to members of their own party, and gave the example of parties merging.
Adv De Lange (ANC) asked the floor whether there were additional issues to discuss.
Dr Bouwer referred to the formula used for allocating delegates as a whole. He explained that he had drafted the law in S 61 (3) of the Constitution. His concern was that in the event of crossing of the floor in the provincial legislature and minority parties are created, there would have to be an equal distribution between permanent and special delegates. As a result, he suggested that a consequential amendment would not be required in terms of the Act.
Adv De Lange (ANC) welcomed the point that had been raised. He highlighted 2issues:
Representation in both permanent and special delegations.
However, he felt that further tests would not be required because in any event, the majority party would attempt to ensure the balances. He emphasized the fact that they would two ever be able to resolve such a practical issue in Parliament. He referred Dr Bouwer to Mr De Lange in the event that he was still not satisfied with particular clauses in the Act.
A Member asked whether there was something that could be done to ensure that the NCOP composition would be retained.
Adv De Lange (ANC) responded that it would not be possible.
Ms Majodina explained that the previous speaker was trying to make the process honest because he is a reverend.
Adv De Lange (ANC) noted that other persons, such as Mr Matthee, had raised a similar concern. Nevertheless, he explained that the reality was that there would also be implications on the individual. Thus it would be wrong for the committee to focus on one area.
Adv De Lange (ANC) stated that there would not be any further amendments to the NCOP matters.
Mr Smit referred back to the comments made in relation to the General Law Amendment Act. He asked whether Dr Bouwer could take the responsibility of making the Committee aware of the laws that would have to be amended.
Adv De Lange (ANC) responded that the amendment would not be made. It had been suggested to leave the matter to a resolution, to be urgently returned to the Committee within the next three months. He explained that the committee would have to accept that there would be knock-off effect that would then have to be changed in the future. He added that the best that the committee could do would be to pass resolutions and then to follow up on the matter.
Mr Carrim stated that his Committee would craft something to that effect in its report to Parliament.
Adv De Lange (ANC) rounded the meeting off by saying that he had found the events of the past week to be very useful. He stated that the committee had done an enormous amount of work in light of the far-reaching consequences that had to be dealt with. Nevertheless, he said that the process had by no means been perfect. However, the public had been given a say over the matter, and he felt that this was very important. In light of this, he anticipated that there would be further amendments. He explained that the committee would not be voting on Friday 24 May 2002, but that they would attempt to bring the matter as far as possible. He went on to say that he had found that all parties had participated, and that they had been accommodating in an attempt to bring about consensus. As Chairs, they had heard the views raised by the opposition parties, and that the aim would be to adopt legislation that would, as far as possible, be passed by all the members. He emphasized that the legislation on hand required a broad consensus on a national level. He pointed out that none of them wished to promote practices that would allow the process to be undermined. Nevertheless, he stated that it would be necessary to put some processes in place.
Mr Carrim pointed out that:
He fully supported visiting all the provinces.
He liked the process that had been offered by Adv De Lange (ANC), that is, to address the current contingent problems. He noted that this would have to be balanced by a separation of the relevant issues.
He asked the DPLG to assist him by providing information relating to the composition of municipalities.
Mr Selesho stated that they had the information with them, and that they would give it to the committee clerk.
Adv De Lange (ANC) asked all of the members in the National Assembly to give the committee clerk the names of the provinces that they wished to visit. He said that it would be very important to visit the provinces, and added that the information would have to be submitted by the afternoon of Monday 20 May 2002, at the latest.
The meeting was adjourned.
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