Local Government Laws Amendment Bill: hearings & deliberations

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Cooperative Governance and Traditional Affairs

16 October 2002
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
17 October 2002
LOCAL GOVERNMENT LAWS AMENDMENT BILL: PUBLIC HEARINGS & DELIBERATIONS


Chairperson:
Mr Y Carrim (ANC)

Documents handed out:
Local Government Laws Amendment Bill [B61-2002] (as tabled)
Submission by Municipal Demarcation Board
Local Government Laws Amendment Bill Proposed Amendments (Appendix 1)

SUMMARY
The Committee heard submissions on the Local Government Laws Amendment Bill from the Municipal Demarcation Board (MDB). They sought to ensure that all the Board's activities are covered in the legislation. This was important for streamlining the demarcation process and it would also save costs that would otherwise have been incurred. The Committee continued its informal deliberations on the Bill and went through the proposed amendments prepared by the technical committee.

MINUTES
Municipal Demarcation Board Submission
Dr M Sutcliffe, Chairperson of the Board, noted that the amendments proposed by MDB are to ensure that all the Board's activities are covered in the legislation. He held that this would be important in streamlining the demarcation process and above all it would save costs which would otherwise have been incurred.

Discussion
The Committee accepted the amendments proposed by the Municipal Demarcation Board, in principle, with the exception of the amendment to Section 26. They were, however, concerned with the wording used in the proposal. It also held that the Board's right to object should be inserted in Section 21 of the Act.

The Chairperson then proposed that Dr P Bouwer: Director of Legal Services, Department of Local Government, Ms J Manche (DPLG Deputy Director General) and the Demarcation Board refine the wording of the proposal and thereafter report back to the Committee for further deliberations. He also expressed the view that the Committee was extremely unhappy with the pressure under which it is working. He said that even though the Local Government Laws Bill is dealing with different Acts, Parliament is pressuring the Committee to get the Bill through before 5 December 2002.

Proposed Amendments to the Bill
The Committee went through the proposed amendments that the technical committee had prepared as the result of previous deliberations on Clauses 14, 18, 20, 35, 37, 41, 42, 43 and 47 of the Bill.

The Committee accepted the proposed amendments to Clauses 14, 18, 35, 37, 41, 42 and 47. The amendment to Clause 37(3) was rejected.

The Committee deferred the proposals on Clauses 20 and 43.

Further Amendments
Clause 3
Mr Smith (IFP) held that the remuneration of all public office bearers should be governed by the Remuneration of Public Office Bearers Act. The Ordinances are ultra vires and outdated and should not be used to remunerate the public officers as they are susceptible to misuse.

The Chairperson held that since the Ordinances are still in place all the political parties have the duty to ensure that all their members who serve in public offices are disciplined. This also goes for the MECs since it is their responsibility to guide against any misuse of power by their municipal officers. He requested clarity on the legal effect of the Ordinances.

Mr B Komphela (ANC) noted that in terms of the Constitution these Ordinances remain in place until repealed or amended. As such their legal effect is devastating since it affects the Remuneration and Systems Acts. He suggested that a request for their amendment should be submitted to Parliament.

Mr Smith held that notwithstanding what Mr Komphela said, the Constitution also declares invalid all laws which are inconsistent with its spirit. Therefore, since the Ordinances are inconsistent with the Constitution, they are invalid in terms of Section 2 of the Constitution.

The Chairperson noted that, until otherwise proven, the Committee believes that all national legislation supersede all provincial ordinances. But this remains a grey area in our law and there is a need to consult legal experts for their advice.

The Committee unanimously agreed that something should be done about these Ordinances. Letters should be written to all interested parties such as the Minister, MECs, FFC and the Premiers indicating a need to amend these Ordinances. It also held that its report to the Parliament should include a proviso requesting for the amendment of these Ordinances.

The Committee accepted the amendments to the Municipal Demarcation Act in Clauses 4 with some amendments, 5 and 6. Clause 7 to the Bill was rejected and a new amendment was inserted in line with the submission received from MDB.

The Committee deferred Clauses 8 and 9.

The Committee accepted the amendments to the Municipal Structures Act in Clauses 11, 12 and 15.

The Committee deferred the amendments to the Municipal Systems Act in Clauses 34(a), 39 and 43.

The Committee accepted the amendments to the Municipal Structures Amendment Act in Clause 46.

The Committee deferred the amendment to Clause 48.

The meeting was adjourned.

Appendix 1:
LOCAL GOVERNMENT LAWS AMENDMENT BILL
[B61 -2002]
PROPOSED AMENDMENTS
CLAUSE 14
1. On page 8, from line 33, to omit subsection (3) and to substitute:
(3) If the mayor is absent or not available and the muni&ipality does not have a deputy mayor, or the deputy mayor is also absent or not available -
(a) the member of the executive committee designated thereto in writing by the mayor acts as mayor; or
(b) a councillor elected by the members of the executive committee from amongst themselves acts as mayor if the mayor has not designated a member thereto or if the designated member is absent or not available.".
CLAUSE 18
1. On page 10, from line 31, to omit paragraph (c) and to substitute:

(c) by the addition to subsection (3) of the following paragraphs:


'~(d) Whenever the Minister revokes an authorisation envisaged by paragraph (a), the Minister must in the notice revoking that authorisation regulate the legal, practical and other consequences of the revocation, which may include -

(i) the transfer of staff;

(ii) the transfer of assets, liabilities, rights, obligations and administrative and other records; and

(iii) the continued application of any by-laws and resolutions in the area of the municipalities in question and the extent of such application.


(e)The Minister must comply with the consultation requirements as set out in paragraph (a) when a power referred to in paragraph (c) or (d) is to be exercised.".

CLAUSE 20

1. That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 19:

Amendment of section 93 of Act 117 of 1998, as amended by section 11 of Act 33 of 2000

20.
Section 93 of the Structures Act is hereby amended by the addition of the following subsections:


"(7) Despite Proclamation No.148 of8 December1993 (Province of the Cape of Good Hope Gazette 4833 of 22 December 1993) and section 38 of the Property Valuation Ordinance, 1993 (Cape), the said Ordinance is deemed to have come into force -


(a) for the purposes of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), immediately before the commencement of that Constitution; and

(b) for all other purposes, on 1 July 1994.

(8) (a) With effect from 5 December 2000 and subject to paragraph (b), any reference in a law referred to in item 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), to a council, municipality, local authority or another applicable designation of a local government structure, must be construed as a reference to a municipal council or a municipality established in terms of this Act, as the case may be.
(b) Paragraph (a) only applies to a law referred to in item 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996), in so far as such a law is still applicable or becomes applicable to a municipal council or a municipality, as the case may be, at the time the Local Government Laws Amendment Act, 2002, comes into effect.


(9) Until the legislation envisaged in section 229(2)(b) of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996), is enacted, a municipality may use the valuations appearing on a provisional valuation roll or an additional valuation roll when imposing property rates.

(10) Subsections (7), (8) and (9) apply to matters that are the subiect of pending litigation.".

NEW CLAUSE

1. That the following be a new Clause to follow Clause 34:

Amendment of section 59 of Act 32 of 2000

35.
Section 59 of the Systems Act is hereby amended by the addition of the following subsection:

"(4) Any delegation or sub-delegation to a staff member of a power conferred on a municipal manager must be approved by the municipal council in accordance with the system of delegation referred to in subsection

CLAUSE 37
1 That the Clause be rejected.

NEW CLAUSE

1. That the following be a new Clause to follow Clause 37:
4
Insertion of section 75A in Act 32 of 2000

38.
The following section is hereby inserted in the Systems Act after section 75:


"General power to levy and recover fees, charges and tariffs
75A.
(1) A municipality may -

(a) levy and recover fees, charges or tariffs in respect of any function or service of the municipality; and

(b) recover collection charges and interest on any outstanding amount.

(2) The fees, charges or tariffs referred to in subsection (1) are levied by a municipality by resolution passed by the municipal council with a supporting vote of a maiority of its members.

(3) Any resolution passed in terms of subsection (2) may be amended or withdrawn by resolution passed by the municipal council with a supporting vote of a maiority of its members.

(4) After a resolution contemplated in subsection (2) or (3) has been passed, the municipal manager must, without delay-

(a) conspicuously display a copy of the resolution for a period of at least 30 days at the main administrative office of the municipality and at such other places within the municipality to which the public has access as the municipal manager may determine;

(b) publish in a newspaper of general circulation in the municipality a notice stating -

(i)
that a resolution as contemplated in subsection (2) or (3) has been passed by the council:

(ii) that a copy of the resolution is available for public inspection during office hours at the main administrative office of the municipality and at the other places specified in the notice;

(iii) the date on which the determination or amendment will come into o~eration; and

(iv) that any person who desires to obiect to such determination or amendment must do so in writing within 30 days after the date on which the notice is first displayed; and
5

(c) seek to convey the information referred to in paragraph (b) to the local community by means of radio broadcasts covering the area of the municipality.

(5) Where -

(a) no objection is lodged within the period referred to in subsection (4)(b)(iv), the determination or amendment comes into operation on the date contemplated in subsection (4)(b)(iii);

(b) an objection is lodged within the period referred to in subsection (4)(b)(iv), the municipality must consider every objection and may -

(i) amend or withdraw the determination or amendment without complying with subsection (4); and

(ii) determine a date other than the date contemplated in subsection (4)(b)(iii) on which the determination or amendment will come into operation.

(6) The municipal manager must forthwith send a copy of the notice referred to in subsection (4)(b) to the MEC for local government concerned.".

CLAUSE 41

1. On page 20, from line 42, to omit section 1 09A and to substitute:


"Legal representation for employees or councillors of municipality

109A A
municipality may, subject to such terms and conditions as it may determine, provide an employee or councillor of the municipality with legal representation where -

(a) legal proceedings have been instituted against the employee or councillor as a result of any act or omission by the employee or councillor in the exercise of his or her powers or the performance of his or her duties: or

(b) the employee or the councillor has been summoned to attend any inguest or inguiry arising from the exercise of his or her powers or the performance of his or her duties.".

CLAUSE 42

1. That the Clause be rejected.

CLAUSE 43

1. On page 22, from line 38 to omit the proviso and to substitute:

Provided that nothing in this subsection precludes the subseguent collection by a municipality of any amounts owed to it in respect of such a property at the time of such transfer or conversion

CLAUSE 47

1. That the Clause be rejected.

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