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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT MEETING
3 June 2002
CROSSING OF THE FLOOR: MUNICIPAL STRUCTURES AMENDMENT BILL
Co-chairpersons: Mr Y Carrim (ANC) and Adv J H De Lange (ANC)
Documents handed out:
Municpal Structures Amendment Bill [B22-2002]
Local Government: Municipal Structures Amendment Bill - proposed amendments (first draft) [see Appendix]
The Joint Committees considered the Municipal Structures Amendment Bill. The Bill has two functions: to bring the Act in line with the Constitutional Amendments and to regulate the issue of sub-councils. The allocation of seats to the sub-councils would be determined by the metro council who would do so by means of a by-law, that was required to be in accordance with the constitutional principles of fair play and democracy. The 14 days given to district councils to convene their first meeting was shortened to seven days. The committees were unsure if the 30 days given to councils to reconstitute should apply from the date that the window period ends or from the date of the certification by the IEC. Mr Carrim asked for two versions of the Bill to be drafted with different formulas for the appointment of councillors.
Proposed amendments to Municipal Structures Amendment Bill
Dr Bouwer, Director of Legislation for Provincial and Local Government, took the Committee through the proposed amendments. He explained that the Bill deals with two main issues. Firstly, it was a "book-cleaning exercise" in that it deletes those sections that make crossing impossible. Secondly, it included provisions relating to sub-councils based on proposals made in meetings. The issue of sub-councils had been raised and presented to the Minister and the Department was waiting for his response.
This dispenses with the "book-cleaning exercise" by deleting the relevant clauses. On the issue of sub-councils, the Bill seeks to suggest that the allocation of seats - especially the PR seats - to the sub-councils should be left to the metro councils to determine. It also suggested that whilst it was wanted to give the metro councils the power to do so, some riders had been added: the allocation of seats should be in compliance with s168 of the Constitution and principles of democracy and fair play (schedule 4), and secondly that the metro councils will have to determine their own mechanisms for allocating those seats. It was suggested in the Bill that metro councils determine the mechanism by means of a by-law, and this was dealt with in clause 4.
Summarising he said that the matter would be left to the metro councils and they could determine the formula by means of a by-law that complies with principles of democracy and fair representation. In addition, there were a number of consequential amendments that deal with crossing and issues relating to the composition of Committees and terms of offices mayors etc.
Mr Carrim raised the first issue to be discussed, that of the relationship between the local council and the district council in terms of crossing. Consequential issues related to when and how to convene the first meeting and when and how to remove the mayor or speaker if it was found to be necessary.
Dr Bouwer explained that the proposal was that after crossing takes place at metro or local council level, a meeting has to be convened. With regard to district councils, the meeting has to be convened after 14 days.
Mr Carrim asked if it was true that if it was intended to remove a mayor or Speaker, 30 days notice must be given and that the Committees had agreed to forgo that provision.
Dr Bouwer replied that clause 7 allows councils to dispense with prior notice.
Mr Carrim pointed out that the Constitutional Amendments state that the council must be reconstituted within 30 days. He felt that there was a need to deal with the consequences of this. The Bill says that the council must meet within seven days. The Co-Chair had pointed out that the council might not be able to be reconstituted within seven days. Mr Carrim felt that that was why the Constitution allows the council up to 30 days in which to convene the meeting and the text provides that the Speaker will convene the meeting.
Dr Bouwer asked for clarity from the Justice Committee on whether the 30 days would run after the 7 days or after the window period.
Adv De Lange replied that it was presently drafted to run from the 15 day window period.
Mr Carrim asked if the 30 days began after the window period or after the certification by the IEC. He said that the policy that had been agreed upon was that it would run from the day of the certification.
Adv De Lange was concerned about the consequences flowing from such a policy. He preferred choosing a date that was more certain.
Mr Carrim responded that a final decision had not yet been made.
Ms Camerer (NNP) questioned the merit of having a notice when things would happen automatically.
Adv De Lange was of the opinion that there was no need to talk of certification as the process was essentially a record of what had happened. Problems would occur where, for example, forms were missing and there would be factual disputes. Concerning the notice, he said that the only issue was that one could not know how the IEC would go about it. The only uncertainty would then be about the date. He therefore felt that the provision should be linked to a definite date rather than linking it to the uncertain notification date.
Dr Delport (NNP) felt it important to bear in mind that in rural areas, even the electoral office might not be so experienced. He was unsure as to what checks the IEC had in place. He questioned the importance of reconstitution of the local governments taking place after certification. He believed that certification was for purposes of general notification purposes and suggested that that be included in the Bill.
Dr Bouwer said that it would be correct to separate the two issues of the time frame and the role of the IEC. Concerning the timeframe he said that it was likely that the district council would be left with nine days in which to reconstitute. The IEC administers the crossing of the floor. The Committees had felt that they wanted someone independent to overlook the process. It should be borne in mind that if one person's form got lost it may have the effect of torpedoing the 10% threshold. As in an election, some kind of certification role has been given to the IEC to come up with a result. The IEC are managing the process so that if something goes wrong, there is someone to see to it.
Ms Southgate suggested looking at the 30 days running after certification.
Mr Carrim questioned the value of the notification. He suggested that the publication date be chosen as the date from which the 30 days would, but was satisfied with it running from the certification date for the moment.
Adv De Lange said that clause 3 would always be subject to the clause referring to the 30 days and suggested that the clause begin with "subject to". He felt that the clause was strongly stated and suggested the insertion of the words "inter alia", before referring to its purposes, to make it less so. He felt that the 14 days referred to in sub(b) be changed to seven days as it would fit in better with the Constitution.
Ms Camerer (NNP) asked if it was advisable to refer to "a meeting" when it may be necessary for more than one meeting to take place.
Mr Carrim wanted to know what the council would do at their first meeting. He said that practically speaking every would like the first meeting to sort out the issues but there had to be some latitude because that may not be possible.
Dr Bouwer said that s29 of the Act regulates the meetings of a municipal council and that the Speaker determines the time and place. Section 29 was therefore the trigger mechanism to start the first meeting after which as many meetings as was necessary could be convened to resolve the issues. Concerning district councils, a period must be stipulated within which the issues must be attended to. Seven days was the outer limit for the council to attend to the meeting.
Adv De Lange suggested rewording the 30 day clause as that may solve the problem.
Dr Bouwer said that consideration should be given to shortening the 30 days to force local councils to reconstitute the district council within a shorter period. He said that he would tighten the wording with regard to the reference to the 30 day clause but in respect of the district councils would stipulate that the first meeting would take place after the local council had reconstituted. the constitutional amendment would then shorten the dates by which the local council may nominate members.
Mr Carrim raised the issue of the relationship between councils and subcouncils, which would be done by means of a by-law mechanism.
Dr Bouwer said that it was being left open for a by-law to address every aspect of sub-councils.
Mr Carrim stressed the importance of allowing for crossing that did not wittle away at democracy. It was never the intention of the Portfolio Committee that the subcouncil was just another council as it was meant to be something substantially more and was derived from the way in which voters in particular areas had voted. Another reason for subcouncils was to allow for a decentralised government as significant powers were delegated to the subcouncil and the chairperson was usually someone in a prominent position, such as the local mayor. He suggested the drafting of two options. Option A would stipulate that the subcouncil be constituted after the general election for local government and schedule 4 would apply in that respect. Option B would be the transitional arrangement for local government.
Adv Masutha (ANC) posed the complication of a meeting to be convened by the Speaker where the Speaker had resigned.
Mr Carrim replied that most councils had unofficial deputy Speakers.
Dr Bouwer added that the issue might be addressed by some councils. There was a great constitutional challenge to the Act when it had been a Bill because it had been argued that it significantly diminished the powers of local government. The by-laws would deal with the issue of Speakers. If that much detail were to be put into the Bill it might raise constitutionality issues again.
Adv De Lange raised the issue of new parties being formed and said that something may have to be done about such new parties as when they came into existence they did not have a list. The wording was that "you must join a party" however it takes 90 days to create a party. He said that the possibility was being looked at from a local government point of view for a party to file a list within seven day and for application for registration to be made with the IEC.
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL
INSERTION OF NOTE
1. That the following Note be inserted on page 2 to precede the heading "BILL".
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
______ Words underlined with a solid line indicate insertions in existing enactments
1. That the Clause be rejected.
1. That the following be new clauses:
Amendment of section 26 of Act 117 of 1998
1. Section 26 of the Local Government: Municipal Structures Act, 1998 (hereinafter referred to as the Structures Act) is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph:
"(b) is appointed as a representative of a local council to a district council for a period ending when the next local council is declared elected, except that where such a person is replaced as a result of the provisions of section 158A(6)(e) of the Constitution, the newly appointed representative is appointed for the remainder of the replaced representative's term.".
Amendment of section 27 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000 and section 121 of Act 32 of 2000
2. Section 27 of the Structures Act is hereby amended by the deletion of paragraphs (c) and (f).
Amendment of section 29 of Act 117 of 1998
3. Section 29 of the Structures Act is hereby amended by the addition of the following subsection:
"(3) Where the composition of a municipal council has been changed as a result of the provisions of section 158A(2), (3) or (4) of the Constitution, the speaker of that council must, for purposes of dealing with the consequences of such a change -
(a) in the case of a metro council or a local council, convene a council meeting within seven days after the notice referred to in section 158A(6)(b) of the Constitution was published in respect of the metro council or local council, as the case may be; and
(b) in the case of a district council, convene a council meeting within 14 days after the notice referred to in section 158A(6)(b) of the Constitution was published in respect of -
(i) the district council; or
(ii) any local council represented in the district council.".
Amendment of section 62 of Act 117 of 1998
4. Section 62 of the Structures Act is hereby amended by the insertion in subsection (1) after paragraph (c) of the following paragraph:
"(cA) determines a method/mechanism for the appointment of councillors referred to in section 63(1)(b) in accordance with Schedule 4;".
Amendment of section 63 of Act 117 of 1998
5. Section 63 of the Structures Act is hereby amended by the substitution in subsection (2) for paragraph (b) of the following paragraph:
"(b) be appointed to the metropolitan subcouncil in accordance with a mechanism that complies with Schedule 4.".
Substitution of section 66 of Act 117 of 1998
6. The following section is hereby substituted for section 66 of the Structures Act:
"Term of office of members
66. (1) The section 63(1)(b) members of a metropolitan subcouncil are [elected] appointed for a term ending, subject to subsection (2) and section 67, when the next metro council is declared elected.
(2) Where a section 63(1)(b) member of a metropolitan subcouncil is replaced as a result of the provisions of section 158A(6)(d) of the Constitution, the newly appointed member is, subject to section 67, appointed for the remainder of the replaced member's term.".
Insertion of new section after section 93 of Act 117 of 1998
7. The following section is hereby inserted after section 93 of the Structures Act:
Special provisions for the application of section 158A(6) of the Constitution
93A. Where the provisions of section 158A(6) of the Constitution apply, the requirement of prior notice referred to in sections 40, 53(1) and 58, respectively, does not apply to the first meeting of a municipal council during the period referred to in section 158A(6)(d) of the Constitution.".
Substitution of Schedule 4 to Act 117 of 1998
8. The following Schedule is hereby substituted for Schedule 4 to the Structures Act:
Principles of allocating councillors elected from party lists to metropolitan subcouncils
Principles of allocating seats to parties
1. The seats in the section 63(1)(b) component of a metropolitan subcouncil must be allocated to parties represented in the metro council in a manner that will allow parties and interests reflected in the metro council to be fairly represented in the metropolitan subcouncil in a manner consistent with democracy, taking into account the parties and interests reflected in the section 63(1)(a) component of that metropolitan subcouncil.
Designation of councillors for metropolitan subcouncils
2. Each party represented in a metro council must designate from among the councillors elected from its party list, its representatives to each metropolitan subcouncil in the municipality with regard to which seats were allocated to it in accordance with the principles set out in item 1.
Councillors to serve on one metropolitan subcouncil only
- No councillor may serve on more than one metropolitan subcouncil.
4. Parties must fill vacancies as they occur.".
Amendment of Table of Contents of Act 117 of 1998
9. The Table of Contents of the Structures Act is hereby amended -
(a) by the substitution for the reference to Schedule 4 of the following reference:
Principles of allocating councillors elected from party lists to metropolitan subcouncils
1. Principles of allocating seats to parties
2. Designation of councillors for metropolitan subcouncils
3. Councillors to serve on one metropolitan subcouncil only
4. Vacancies"; and
(b) by the insertion after the reference to section 93 of the following reference:
"93A. Special provisions for the application of section 158A(6) of the Constitution".
10. A metro council may determine the mechanism referred to in section 63(2)(b) of the Local Government: Municipal Structures Act, 1998, by way of resolution until a period of 30 days following the period referred to in section 158A(5)(a)(i) of the Constitution, has expired.
Short title and commencement
11. (1) This Act is called the Local Government: Municipal Structures Amendment Act, 2002, and with the exception of section 2, comes into operation on the date that the Constitution of the Republic of South Africa Amendment Act, 2002 comes into operation.
(2) Section 2 comes into operation after a period of 30 days following the period referred to in section 158A(5)(a)(i) of the Constitution, has expired.
1. That the Clause be rejected.