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JUSTICE AND CONSTITUTIONAL DEVELOPMENT FINANCE, PROVINCIAL & LOCAL GOVERNMENT PORTFOLIO COMMITTEES: JOINT MEETING
12 November 2002
CONSTITUTION THIRD AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr De Lange (ANC)
Working draft: Constitution of the Republic of South Africa Third Amendment Bill
Constitution of the Republic of South Africa Third Amendment Bill [B33-2002]
The Committee looked at the amendments it had requested be made to Clause 4 of the Constitution Third Amendment that deals with interventions when municipalities are experiencing a financial crisis.
Constitution of the Republic of South Africa Third Amendment Bill
The Committees last met on this Bill on 16 September 2002.
Dr Delport (DP) commented that this draft is a vast improvement on the tabled Bill. Looking at the new Option for Clause 4, he said that the introduction of subclauses (2) and (3) in Section 139 makes subclause 1 problematic. He referred to the words executive obligation in 139(1) of the Working draft. He added that in terms of the rules of interpretation that must be an executive obligation other than financial failures and other than budgetary problems. Dr Delport stated that he sees this as a problem. He asked what is an executive obligation other than financial failures and budgetary problems that could be so serious as to warrant an intervention.
The Chair replied that all local government interventions up to now were in terms of Section 139(1). He added that - to make a crude distinction - these are political problems and not financial. They are discretionary interventions (under subclause 1 and therefore there is more room for abuse. He stressed that this is the reason one needs subclauses (2) and (3). Those subclauses are one's checks and balances. If somebody abuses it, the Minister of Provincial and Local Government or the NCOP can immediately stop it.
Ms Hogan (ANC) mentioned the example of Tweeling Municipality where for almost two years the council did not meet because of personality and political problems. That had led to a community boycott of municipality service charges which was followed by a financial crisis. She stated that she was wondering what does the MEC do when a council has not met for two years.
Mr De Lange clarified that in subclause 1 of the Option in Section 139 the formula for the three types of interventions is spelled out.
Ms Hogan suggested adding the words and obligations to 139(5)(a) after financial commitments. Her suggestion was accepted. She also proposed changing the word or in 139(7) to and. The change was made. In 139(5)(b) it was also decided to delete necessary to give effect to the budget.
Ms Camerer (NNP) enquired about the possible conflict between the steps the Minister can take and the steps the National Council of Provinces (NCOP) can take to intervene. She wondered if some sort of pecking order should not be built in.
Mr De Lange replied that it is an interesting feature of this legislation. He added that the way it is drafted is that if either of those two entities decides it is not desirable they can stop the intervention. He added that there are good checks and balances built into the legislation.
Mr Smith (IFP) asked whether municipal bylaws are considered legislation for the purposes of Section 139.
Mr De Lange told him it does include the bylaws. He also instructed the legal advisors to check up on this. He added that they would probably have to spell out in Section 139(8) when an intervention ends.
Adv. Masutha (ANC) commented that for the end of an intervention they will have to provide for transitional arrangements to spell out how the passing of responsibility is going to happen legally.
Mr De Lange said that he could not agree more but that that falls under local government and would not be added to this legislation.
Ms Taljaard expressed her uneasiness with the words exceptional circumstances in Section 139(1)(c) and especially the degree of discretion that these words allow.
Mr De Lange reminded Ms Taljaard, that because of the discretionary nature of this intervention, the dissolving of a council could be taken to court. He emphasised that checks and balances are built into the legislation.
Ms Hogan stated that she thinks it will happen very seldom that a MEC will use the dissolving provision in 139(1)(c).
Ms Taljaard noted her concerns on the question of political accountability for the financial recovery plan that would be implemented if an intervention takes place.
Mr Smith proposed changing a word in the heading of Section 139. He suggested replacing supervision with intervention.
Mr De Lange adjourned the meeting.
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