Municipal Structures Second Amendment Bill: hearings

Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO; SELECT COMMITTEE ON LOCAL GOVERNMENT: JOINT MEETING
3 February 2003
MUNICIPAL STRUCTURES SECOND AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Mr Y Carrim (ANC)

Documents handed out:
Municipal Structures Second Amendment Bill [B68-2002]
Municipal Structures Act, 117 of 1998
Community Law Centre submission (Appendix 1)
Cape Town Municipality submission (Appendix 2)
Western Cape Department of Provincial and Local Government submission (Appendix 3)
SALGA submission (Appendix 4)
Proposed Amendments to Municipal Structures Amendment Bill (Appendix 5)
Financial and Fiscal Commission submission

Submissions not discussed [email [email protected] for a copy]
ASCORA submission
Soweto submission

SUMMARY
Morning Session
The South African Local Government Association (SALGA) contended that Clause 2 of the Bill creates problems with the term of office of the Mayor. The discussion on this presentation centred on whether the change in municipal system types would cause an interference in service delivery.

The Community Law Centre submission proposed that the change in municipal system type has to be possible during the term of the municipal council. This change has to apply to all types listed in the Structures Act, and the Bill must clearly state the consequences of the change in municipal system type. The Department of Provincial and Local Government stated that the change in municipal system would not cause much disruption, and would not affect the terms of office. Members also discussed whether the speaker would retain office.

The Western Cape Local Government Department submission contended that the speaker would not be affected by a change in municipal system type, and stated that there is a need to enforce the consultation process when deciding on a change. The Financial and Fiscal Commission submission cautioned against allowing a change in municipal system type in order to acquire additional funds.

The Cape Town City submission supported the move to the mayoral executive system, and raised concern with the Bill's failure to permit a change in municipal system mid-way through the municipal council's term. Members considered whether service delivery would be problematic during the mid-term.

MINUTES
Morning Session
The Chair welcomed all present to the first meeting of the Committees for 2003, which also marks the public hearings on the Bill.

SALGA submission
Mr Masemola: South African Local Government Association (SALGA) councilor, conducted the presentation. The organisation's primary contention was that Clause 2 of the Bill creates a problem with the term of office of the Mayor or member of an executive committee in the event of a change in the type of municipality. (please see attached presentation)

Discussion
Ms G Borman (DP) asked Councilor Masemola to explain whether he contended that his concern lies with the disruption of service delivery. If so, this concern is shared by Members of Parliament as well, but is it necessary to change the type of municipal system just because the governing structure has changed? Is SALGA in favour of the amendments as they currently appear on condition that they clearly provide that the time frames are within the council's term of office?

Councilor Masemola replied that it is understandable that the changes in the type of municipal system result in interruption. SALGA's concern is that when it happens, the second term of the incumbent would not be regarded as a second term of office. This is the critical point SALGA is trying to make.

Mr P Smith (IFP) asked whether the current Section 47(2) of the Municipal Structures Act (the Act) should not be amended as well.

Councilor Masemola responded that SALGA proposes that the amendment be deleted and replaced with its own proposal.

The Chair contended that the SALGA proposals raise two distinct issues: the first is the interruption in service delivery by the municipalities due to the change in municipal system. The second relates to the problem caused with the timeframes regarding the term of office of members of the executive council. It could very well be that the implementation of the crossing-of-the-floor legislation causes a disruption, but it is not entirely certain whether the changing of the type of municipal system is actually less disruptive.

Dr P Bouwer, Director, Legal Services: Department of Provincial and Local Government, responded to the first issue raised by the Chair. He informed Members that Section 16 of the Act allows for the changing of municipal system types into the following two broad categories: executive mayoral system and collective executive system. The Department does not foresee any difficulty in changing the type of municipal system, because it deals with change at a level which would not effect substantial change on the structure. The main governance structure would remain the same.

The precise rationale behind SALGA's proposals is not clear, and its proposals will result in no further progress being made with this Bill.

With regard to the second issue raised by the Chair, concerning the term of office of members of the executive council, Dr Bouwer replied that a conscious decision was taken by this Committee not to adopt the scheme currently employed in the legislation. Thus the Amendment Bill now provides that when a member is replaced for the remainder of the term, the member only serves their first term in office when properly elected.

The Chair stated that the amendments tried as much as possible to cater for the fundamentals in the Bill, and this matter has to be considered further in the study groups.

Dr Bouwer reminded Members that the matter of settling the term of office of members of the executive council was a major point during this Committee's previous discussions, and it has to be reworked.

Community Law Centre submission
Prof Nico Steytler: Community Law Centre (CLC), raised a number of concerns. Firstly, the Bill has to specify that a change in the type of municipal system is possible during the term of the council. Secondly, the changes to the type of municipality during the term of council must be possible for all existing types listed in the Act. Thirdly, the proposed amendments must be drafted in clear language as to express the nature and consequences of the change of a type of municipality during the term of the council. (see attached presentation)

Discussion
The Chair requested clarity on the CLC's first proposal.

Mr Smith said he failed to understand the reason for this proposal because Section 16 of the Act provides that the municipal system may be changed at any time, and it is only Subclause (c) that clearly stipulates a time frame within which this may occur.

Dr Bouwer informed Members that the Bill tries to deal with the consequences between the municipal council system, the mayoral system and the executive plenary system. The Department has always been of the opinion that the change caused would not create much disruption. Strong legal opinions on this matter have stated that this will not change but affect the term of office, and the constitutionality of this was questioned.

Prof Steytler agreed with Mr Smith, and contended that the amendment proposed by the CLC is aimed at clarifying the current position.

The Chair stated that the proposed amendment can be included if it clarifies matters.

Dr Bouwer replied that the Department would have not problems with its inclusion. Any change in the type of municipal system within a category would not result in a change in the terms of office of the members of the council. When a change is effected to a mayoral executive type the executive council type falls away and is never regarded as a vacancy. This is different to the position where a person vacates their office.

With regard to the CLC's second proposal, Dr Bouwer stated that all the various permutations of the collective executive municipal system are grouped together and listed exhaustively in the Bill. Attempts were also made to fix the necessary terminology needed to capture the concepts, yet this was a difficult task because no definitions were provided in the Structures Act. The current framework is awkward, but will be restructured.

Prof Steytler contended that they may be technical amendments, but the CLC's concerns regarding the position of the speaker and mayor have not been covered.

Dr Bouwer responded that the speaker retains office. If the municipal system is changed, that office would no longer continue to exist, and would therefore not affect the term of office of the speaker. Every municipal system type has a speaker.

Prof Steytler contended that, when changing to a plenary executive type, the position of speaker is removed, and a new election would have to be held to get the speaker back.

Dr Bouwer maintained that the speaker would remain, and a separate procedure is employed to remove a speaker form office.

Mr B Komphela (ANC) stated that he agrees with Dr Bouwer, as the mayor can be removed from office, but this does not necessarily mean that elections would have to be held.

The Chair stated that this proposal should be included, but with the provision that consensus is needed on the issue.

Dr Bouwer assured the Chair that the matter would be sorted out.

The Chair referred to the CLC's third proposal in its submission, and sought clarity on the reason behind "Consequence B".

Dr Bouwer suggested that this is the opposite of the SALGA proposal regarding the successive terms served by the Mayor, and this concern has already been provided for.

Prof Steytler stated that the Bill only indirectly refers to this. The aim of the CLC proposal is to spell this out clearly, and to give expression to the objectives of the Bill.

Dr Bouwer requested that he be given some time to apply his mind to this matter as well.

Western Cape Department of Local Government submission
Mr Brewis, Director: Legislation and Administration, Western Cape Department of Local Government, raised the following concerns. The position of the speaker will not be affected by the change in municipal system, and the need to enforce the process of consultation before choosing a type of municipal system via Section 16 of the Act.

Financial and Fiscal Commission submission
Dr Hildegarde Fast, Financial and Fiscal Commission Manager: Parliamentary Office, noted that there is no need for the Financial and Fiscal Commission (FFC) to comment on the Bill for the following two reasons. Firstly, the FFC did not comment on the change in municipal system type when Section 16 of the Structures Act was considered in 1998, nor will it do so now. Secondly, a change on municipal system type should not be permitted purely to allow municipalities to solicit additional funds.

Discussion
The Chair asked Dr Fast to explain just how municipalities would be able to use the change in municipal system to acquire additional funds.

Dr Fast replied that the executive committee uses salary scales which places more pressure on the equitable share and the I-Grant, and the formula employed allows for a choice in the type of municipal system.

The Chair reminded Dr Fast that the MEC does not solely choose the municipal system type. The executive council type receives higher salaries than members of the executive mayoral system type.

Councilor Masemola informed Members that payments are determined by grading, but all officials are on the same level.

The Chair asked Dr Fast to explain her statement regarding the financial consequences for municipal system types.

Dr Fast replied that she was saying that should such consequences occur, the change in type cannot be permitted for a request for funding. She stated that she was thus not saying that such consequences would occur.

City of Cape Town submission
Mr Saleem Mowzer, the City of Cape Town Executive Councilor: Trading Services, highlighted the City of Cape Town's support for the move from the current collective executive system to mayoral executive system. He also highlighted the Bill's failure to permit a change in municipal system types mid-way through the term of the municipal council. The City supports that Bill as it currently stands, and does not propose any amendments.

Discussion
The Chair asked Dr Bouwer to summarise the issues that have been raised by the four previous presenters.

Dr Bouwer stated that the first is whether a vacancy is created by the change in municipal system types, and whether the relevant provision in the Structures Act has to be removed. The second is the position of the speaker in the event of a change in municipal system type, and the possible need for a provision dealing expressly with the removal of the speaker. The third matter is the impact that the change in municipal system would have on the term of office of the Mayor.

Ms Borman requested the City to explain its comment that service delivery will not be problematic during the mid-term.

Mr Mowzer responded that the City conducted a full assessment on the implementation of the equitable service delivery framework for the City, and found large sectors of the City that either receive very little or no service delivery at all. Close to 600 000 people live on privately owned land without basic services such as sanitation, water and electricity, and this Bill now proposes the implementation of legislation passed by Parliament to extend these services to them or the landowner in an effort to help identify such land.

The City is also currently engaged in developing a framework to assist in identifying areas that are experiencing problems with the extension or improvement of services. The key here is to develop an equitable service delivery strategy, and over the next eight weeks the City Mayor will present a report to the municipal council that explains the time frames within which this will be effected, and how the new municipal system type will facilitate this.

Mr Michael Evans, the City's legal counsel from Mallinicks Inc, added that the City has identified areas in the Bill where the drafting could have been tightened up. The City accepts the first point as summarised by Dr Bouwer, as long as some end point is put in place.

Mr Smith asked whether the Department approves.

Dr Bouwer proposed that the exact wording relating to the vacation of office be placed in Section 46 of the Structures Act dealing with the term of office.

The Chair stated that this sounds fine, but it has to be considered further.

Mr Evans stated that the City did consider the second point as summarised by Dr Bouwer, but was of the opinion that this is a political matter and should not be addressed via legislation. A vote of no confidence could always be employed in any attempts to remove the speaker from office.

Committee's Study Tour to Municipalities
The Chair noted that Members reported that the study tour was a success, and it gave Members invaluable first-hand experience of the problems actually faced by residents on a daily basis.

Afternoon session
Having concluded the public hearings, Members were briefed by the Western Cape Department of Local Government on proposed amendments to the Bill.

Western Cape Department of Local Government
Mr MJ Brewis detailed the proposed amendments. The Department's comment on the Bill was based on their interpretation that the existing type of municipality is dissolved, and the new type established on the date of the publication of the section 16 amendment notice or on a date determined in such notice. A further interpretation is that where the type of municipality is changed from the collective executive system to the mayoral executive system or vice versa, the position of the speaker will not be affected. Mr Brewis indicated that the proposed amendments did not mark a shift in policy as far as the Bill was concerned.

Discussion
Ms Borman (DP) needed some clarity in respect of section 46 and more particular whether that provision also extended the term of the executive mayor after the end of its term?

Mr Van Deventer (NNP) asked whether the aforementioned provision could be interpreted to mean that the executive committee could continue after its term?

Mr Uys (NNP) conceded that irrespective of the change of term, the executive mayor could not serve more than two consecutive terms.

A Speaker (SALGA) suggested that section 46 should be interpreted to mean that one could serve two years as an executive mayor and two years a member of the executive committee.

Mr Brewis (Department), responding to the questions posed, was of the view that there was a possibility of abuse in both systems. However, he highlighted what was important, namely, that the term of the executive mayor had to coincide with the term of the executive committee.

Mr Solo (ANC) suggested that the consecutive nature of the term should be based on the type of the municipality.

Mr Brewis informed the Members that if the proposed changes were going to be effected that would automatically affect Section 48 of the Act.

Mr Carrim noted that Members would vote on the proposed amendments during the course of the week.

The meeting was adjourned.

Appendix 1:
27 January 2003
Community Law Centre Submission

Herewith the submission of the Local Government Project at the Community Law Centre, UWC on the Local Government: Municipal Structures Second Amendment Bill, 2002 ('the Bill'). In order to comment on the proposed amendments one needs to take one step back and consider the legislative framework currently pertaining to the change of the type of municipality.

SUBMISSION 1: The Act must specify that a change of the type of municipality is possible during the term of council.

I. Legal Framework

It is understood that the introduction of the Bill is necessitated due to the fact that the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998) ('the Act') is unclear with regard to the principles and procedure applicable when a MEC for local government ('MEC') attempts to change the types of municipalities in a province during the term of a municipal council.

In the new local government dispensation, a municipality is established by means of publishing a notice in a Provincial Gazette. The contents of such an establishment notice are governed by the provision in section 12(3) of the Act and the type of municipality that is established must be specified. It follows then, that in such an establishment notice, one will find an item dealing with the type of municipality that was established.

Section 16(1) of the Act gives the MEC the power to amend an establishment notice "to change the municipality from its existing type to another type". The Act as well as chapter 2 of the Local Government: Municipal Structures Amendment Act, 2000 (Act 33 of 2000) is silent with regard to when a MEC may amend the establishment notice of a municipality as to change the municipality's type. Thus, the question needs to be answer of whether an establishment notice of a municipality can be amended during the term of a council specifically to change the municipality's type. Such an amendment will have a profound effect on the internal structures and functionaries of a municipality.

Section 16 of the Act read with chapter 2 of the Municipal Structures Amendment Act, 2000 outlines the procedure to be followed when a MEC considers the amendment of an establishment notice.

Chapter 4 of the Act is host to the provisions dealing with the internal structures and functionaries of a municipality and it is clear that not all of these provisions will apply to a municipality, but the applicability thereof is determined by the type of municipality involved. After intensive scrutiny of the provisions in chapter 4 of the Act, one is not nearer to finding an indication of when a MEC may amend an establishment notice of a municipality as to ensure a change to the municipality's type. Thus, chapter 4 of the Act is silent on whether such a change may occur during the term of a council.

The silent rule of interpretation determines that if the legislature wanted to regulate a certain matter, it would have done so with specific provision within the applicable legislation. Therefore, the current legislative framework does not provide for the amendment of an establishment notice during a term of council with the specific aim to change the type of municipality.

In summary, the legislative framework gives the MEC the power to amend an establishment notice and provides for a specific process that needs to be followed when doing so, but is silent on whether such an amendment can be made during the term of a council.

II. Comment on Bill and Recommendation

The proposed amendments does not address the when issue, but the how issue. It follows that the how issue should be addressed by the MEC within the section 16-amendment notice and not in the fashion as proposed in the Bill. What the Bill needs to do is to provide for the disestablishment of political structures due to the change of the type of municipality during the term of council.

It is recommended that section 16(1) of the Act be amended to read as follows -
"The MEC for local government in a province, by notice in the Provincial Gazette, may, at any time during or at the end of a term of council, amend a section 12 notice - …"

SUBMISSION 2: Changes to the type of municipality during the term of council must be possible for all existing types listed in the Act.

I. Legal Framework

Section 7 of the Act lists the different types of municipalities that may be established by the MEC and the following three types is of importance, namely a collective executive system, a mayoral executive system and the plenary executive system.

If amendments to the Act are considered to reflect a change of the type of municipality during the term of council, it logically follows that such an amendment should reflect possible changes of all types of municipalities already listed in the Act. For example, in December 2000 seven municipalities in the Western Cape Province were established as plenary executive municipalities (Plettenberg Bay, Laingsburg, Kannaland, Prince Albert, Swellendam, Cederberg and Cape Agulhas). There is no prohibition in the Act regarding the change of a plenary executive type of municipality to a mayoral executive type of municipality. In practice it can be argued that it is not the best executive governance structure choice for these smaller municipalities, for example in the case of Laingsburg a change from the plenary executive system to the mayoral executive system will result in the council electing an executive mayor and the later then appointing only two members to the mayoral committee.

II. Comment on Bill and Recommendation

The current amendments only deal with the change of the collective executive type of municipality to a mayoral executive type of municipality and visa versa. It does not provide for the change of a plenary executive type of municipality to a mayoral executive type of municipality, as would be the case in some instances in the Western Cape Province. Thus, the amendments should reflect a complete as well as reversible option when considering the change of the type of municipality.

SUBMISSION 3: The proposed amendments must be drafted in clear language as to express the nature and consequences of the change of a type of municipality during the term of council

I. Consequence A

When a section 16 amendment on the change of the type of a municipality comes into effect, it means that the type of executive governance structure of a municipality is changed. It means that the former type of governance structure is replaced with a new type of structure. When functionaries within the executive governance structure of a municipality are changed (meaning the establishment and election of political office bearers and committees), it does not result in the changing of the type of governance structure for the municipality. A change to the type of governance structure cannot be interpreted to be a vacation of office as mend in section 27 of the Act or the dissolution of a municipal council as provided for in section 34 of the Act.

A change to the type of municipality during the term of council results inter alia in the termination of an executive committee and a mayoral committee. It is inappropriate to refer to this as a vacation from office seeing that the office in it self ceases to exist and is disestablished when the type of municipality is changed.

In principle the position of the speaker is not influenced by a change to the type of municipality during the term of council. However, in the case of a plenary executive type of municipality, the speaker and the mayor is one and the same councillor. Therefore, when a plenary executive type of municipality is changed to either a mayoral executive system or a collective executive system, the mayor and the speaker will no longer be one and the same councillor and this unique situation needs to be addressed by the legislator.

Comment on Bill and Recommendation

The drafting style of the proposed amendments does not ensure legal certainty and may lead to confusion in understanding the process involved and consequences of changing the type of a municipality during the term of council.

It is recommended that a single section is drafted to address Consequence A -
"The change to the type of municipality during the term of council -
disestablish the political structures of the council as referred to in sections 42, 48, 55, 60 of the Act as well as section 36 as is applicable to the plenary executive system; and
requires that the council elects new political structures as needed for the functioning of the new type of municipality as provided for in the Act."

II. Consequence B

A change to the type of municipality during the term of the council results into the termination of the term of the elected political office bearers such as the mayor and deputy mayor. Section 48(4) of the Act states that "A mayor and deputy mayor is elected for the duration of that person's term as a member of the executive committee" and the conditions set out under which these office bearers vacates their office does not provide for a change of the type of municipality during the term of council.

The intention of the Bill is that a new election of office bearers due to the change of the type of municipality during the term of council constitute a new term. This could be more clearly explained.

Comment on Bill and Recommendation

This consequence is currently not explicitly addressed in the proposed amendments and it is recommended that a single section is drafted to address Consequence B -
"The election of councillors as mayor or deputy mayor in terms of the new type of municipality is regarded as a new term of office for the purposes of section 48(5) and section 57(2) of the Act."

III. Consequence C

Other practical consequences of changing the type of municipality during the term of council is that the newly established executive governance structure of a municipality would have to adopt a new system of delegations in terms of section 59 of the Municipal Systems Act as well as new terms of reference for the relationship between the municipality's political structures, office bearers and the municipal manager (section 53 of the Municipal Systems Act).

Comment on Bill and Recommendation

The proposed amendments to the Act do not address this matter. It is recommended that these and other similar practical matters can successfully be addressed in the section 16-amendment notice.

7 January 2003
Adv. Charmaine Maré
Ms Geraldine Smith
Prof Nico Steytler

Appendix 2:
CITY OF CAPE TOWN

In re:

LOCAL GOVERNMENT : MUNICIPAL STRUCTURES SECOND AMENDMENT BILL (B68-2002)

ORAL SUBMISSIONS

1. The City of Cape Town ("the City") is grateful for this opportunity to address your Committee. In particular it is extremely appreciative of the efforts the Committee is making to progress the Local Government : Municipal Structures Second Amendment Bill ("the Bill") through the Parliamentary process as quickly as possible.

2. Following the change in political control of the City last year, the City committed itself to supporting the move from the current collective executive system to a mayoral executive system. The City firmly believes that a mayoral executive system is appropriate and in the best interests of the City and all its residents.

3. The City has, however, been advised, in separate opinions from Senior and Junior Counsel, that the Local Government : Municipal Structures Act, 1998 ("the Structures Act") does not permit a change in the type of municipality mid-way through the term of a municipal council. More specifically, the Structures Act does not currently contain any provision for the removal of the members of an executive committee consequent upon the abolition of an executive committee during the course of a municipal term. The drafters of the Bill appear to have come to the same conclusion, as reflected in the memorandum on the objects of the Bill.

4. Taking the above into account, the City fully supports the Bill as is, that is, without any further amendments.

5. The City is currently being governed in accordance with the current collective executive model. Yet all the planning being undertaken by the City's political structures is influenced by the terms of the Bill and the prospect of the change in type from a collective executive system to a mayoral executive system being effected as soon as possible after the Bill is enacted. With this in mind, the City would respectfully encourage the decision-makers to continue to progress this Bill through the Parliamentary structures as quickly as is feasibly possible.

6. I thank you once again for this opportunity. We are naturally willing to address any questions the City may have.

Presentation made by:-
Saleem Mowzer
Executive Councillor : Trading Services
Date : 3 February 2003

Appendix 3:
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES SECOND AMENDMENT BILL, (W68-2002)
3 February 2003

Portfolio Committee on Provincial and Local Government

National Parliament

COMMENTS BY THE WESTERN CAPE DEPARTMENT OF LOCAL GOVERNMENT

1.1 The Department's comment on the Bill is based on the interpretation that the existing type of municipality is dissolved, and the new type established on the date of the publication of the section 16 amendment notice or on a date determined in such notice.

A further interpretation is that where the type of municipality is changed from the collective executive system to the mayoral executive system or vice versa, the position of the speaker will not be affected. This also applies in the case of an existing municipality with a plenary executive system where the speaker is called the mayor but the latter position has been vacated. The speaker who is the only office bearer whose position is not effected by the change of the type of municipality must call the meeting for the election of new office bearers. Consideration may be given to the specifying of this election procedure.

1.2 It is not clear why a municipal council is afforded the opportunity to choose to have an executive mayor (section 54(2) of the principal act) or an executive committee (section 42(2) of the principal act). Section 16 of the Municipal Structures Act provides for a process of consultation before an amendment to a section 12 establishment notice may be effected. It appears that a municipality does not, after the notice changing the type of municipality has been published, have a choice as to whether an executive mayor or executive committee will be elected.

A section 16 notice must, inter alia, provide for the type of municipality that is established. Should for example clause 3 (section 54(2) of the principal act) be interpreted in such a way that a municipality have a choice whether or not to elect a mayor in terms of the executive mayoral system, after it has been established as such in the section 16 notice, the consultation process, as well as the establishment of a specific type of municipality by the Provincial Minister, will be nullified. In short, if it is the prerogative of the Provincial Minister to determine the type of municipality, the reference in sections 54(2) and 42(2) that the municipality have a choice in this matter, is misleading.

It is therefore proposed that the drafters of the Bill reconsider the wording of sections 42(2) and 54(2) of the principal act, so as to clarify the intention of the legislature in this regard.

2. It is trusted that the comments will be of assistance to the Committee.

HEAD OF DEPARTMENT

Date: 30 January 2003

Appendix 4:
Submission on the Municipal Structures Second Amendment Bill B68 - 2002

30 January 2003
Final Draft
EXECUTIVE SUMMARY

1. Clause 2 of the Bill links the term of office of a mayor (member of an executive committee) to a period ending when there is a change in the type of municipality from an executive committee type to an executive mayor type. Similarly, clause 4 links the term of office of an executive mayor to a period ending when there is a change in the type of municipality from an executive mayor type to an executive committee type.
2. The term of office for a mayor or executive mayor coincides with the term of the municipal council excepts when such an office bearer vacates office as contemplated in sections 48 and 59 of the Municipal Structures Act.
3. When a mayor or executive mayor assumes office "during a term", such an "interrupted term", within the context of a five-year council term, must not be construed as a term for the purposes of sections 48(5) and 57 of the Municipal Structures Act. Similarly, when the political structures of a municipal council is reconstituted "during a term" as a result of floor-crossing, that, in itself, may give rise to an interrupted term for the political office bearers and such a term must not be construed as a term for the purposes of the said sections of the Municipal Structures Act.
4. Section 47 of the Municipal Structures Act must be amended to read as follows:

By the addition of a subsection (3)

"No vacancy shall arise merely as a result of the changing of the type of a municipality during a term of a municipal council."

5. Section 59 of the Municipal Structures Act must be amended to read as follows:

"59(1) An executive mayor or deputy executive mayor …

1. …
2. …
3. …

(2) No vacancy shall arise merely as a result of the changing of the type of a municipality during a term of a municipal council."

6. Section 46 of the Municipal Structures Act must be amended to read as follows:

by adding the following proviso:

"Provided that the mere application of Schedule 6 A of the Constitution will not ipso facto result in another term of office for the relevant office bearers."

7. Section 57 of the Municipal Structures Act must be amended to read as follows:

by adding the following subsection:

DISCUSSION

1. The bill seeks to regulate the changing of municipal types during the term of a municipal council. It provides, among others, that the term of office of a mayor comes to an end in the event that there is a change in the type of municipality and the mayor becomes an executive mayor. At face value, this appears to be a logical provision because there is a new structure, say an executive mayor, instead of the old, an executive committee.
2. Sections 48(5) and 57(1)(b) state that no person may serve more than two consecutive terms as a mayor or executive mayor respectively. If this can be interpreted as meaning that one may serve two consecutive terms as a mayor and a further two consecutive terms as an executive mayor (if there is a change of types for example), then that would be acceptable.
3. If sections 48(5) and 57(1)(b) are interpreted restrictively to mean that a person may not serve for more than two consecutive terms, whether as mayor or executive mayor, this would give rise to serious difficulties. In this regard, the situation that the mayor of the City of Cape Town finds herself in is instructive. She took office during the term of council as mayor within a collective executive system. Upon the passage of this amendment bill into law, she will, in all probability, be elected to the office of executive mayor and another term of office will ensue. Depending on one's reading of the sections referred to above, she will either be in her first term or in her second consecutive term.
4. A further related matter to the issue of a term of office for a mayor or executive mayor, is when such a term would commence for purposes of calculating the two consecutive terms. The amendment bill provides for a term of office to commence upon the election of the mayor or executive mayor after the changing of the type of municipality. This means that, in the case where there is such a change of types during the council term, the first term of office of the mayor or executive mayor will be for a period less than five years. A second consecutive term will, in all probability, be for a period of 5 years. Taking the City of Cape Town example, the maximum duration for two consecutive terms would be approximately seven and a half years.
5. It is our contention that, barring the current restrictions on the duration of a term as per sections 46 and 57 of the Structures Act, the principle should remain that a term of office is equated with the term of a council. We argue, therefore, that there should be no vacancy upon the changing by a municipality of its type. The rationale is that there will be a new political structure with a new political head. The old structure is not vacant - it has ceased to exist. The logical conclusion of this argument is that the new political head is not engaged in a term of office for the purposes of calculating two consecutive terms.
6. The issue of a term of office also arises within a different context. A number of municipal councils had to undergo a process of reconstituting their political structures as a result of having been affected by the floor crossing exercise. The question arose as to whether the mere act of reconstituting the political structures, gave rise to a new term of office for such reconstituted structures. If that be the case, a situation would arise where one could conceivably have three terms within a full council term if a council is affected by floor crossing during the two window periods. In such a scenario, the first term of the mayor of Tshwane, whose council was affected by floor crossing, ran from 5 December 2000 to 8 October 2002 and, should that council be affected by floor crossing during the 2004 window period, his second consecutive term will come to an end then.
7. In order to deal with any legal uncertainty in this regard, it is proposed that it be made clear in the Structures Act that the mere reconstituting of a council and its political structures does not result in any vacancies having arisen in such structures.

RECOMMENDATIONS

1. Clause 1 of the bill

The proposed amendment must be retained.

2. Clause 2 of the bill

The proposed amendment must be deleted and must be replaced by the following:

By the addition of a subsection (3)

"No vacancy shall arise merely as a result of the changing of the type of a municipality during a term of a municipal council."

3. Clause 3 of the bill

The proposed amendment must be retained.

4. Clause 4 of the bill

The proposed amendment must be retained.

5. Clause 5 of the bill

The proposed amendment must be deleted and must be replaced by the following:

"59(1) An executive mayor or deputy executive mayor …

1. …
2. …
3. …

(2) No vacancy shall arise merely as a result of the changing of the type of a municipality during a term of a municipal council."

6. New proposed clause - amendment to section 46

by adding the following subsection:

"(3) the mere application of Schedule 6 A of the Constitution will not ipso facto result in another term of office for the executive mayor."

Appendix 5:
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES SECOND AMENDMENT BILL
[B68-2002]
PROPOSED AMENDMENTS

CLAUSE 2
1. That the Clause be rejected.

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

Amendment of section 46 of Act 117 of 1998
2. The following section is hereby substituted for section 46 of the principal Act:

"Term of office of members
46. The members of an executive committee are elected for a term
ending, subject to section 47, when -

(a)the type of the municipality has been changed from any of those mentioned in sections 8(a), (b), (c) or (d), 9(a) or (b) or 10(a) to any of those mentioned in sections 8(e), (f), (g) or (h) 9(c), (d) (e) or (f) or 10(b) or (c); or
(b) the next municipal council is declared elected.".

CLAUSE 4
On page 4, from line 18, to omit paragraph (a) and to substitute:

"(a)must be elected for a term ending, subject to [section] sections 58 and 59, when -(i~
the type of the municipality has been changed from any of those mentioned in sections 8(e). (f), (g) or (h). 9(c) or (d) or 10(b) to any of those mentioned in sections 8(a), (b) (c) or (d) 9(a), (b) (e) or (f) or 10(a) or (c)

(ii)the next council is declared elected; and".

CLAUSE 5
1 That the Clause be rejected.

Date : 3 February 2003