Third Constitutional Amendment Bill: negotiating mandates

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
19 March 2003
THIRD CONSTITUTIONAL AMENDMENT BILL: NEGOTIATING MANDATES

Chairperson: Kgoshi L Mokoena (ANC)[Northern Cape]

Documents handed out:
Constitution of South Africa Third Amendment Bill [B33B-2002]
Explanatory Note on the Constitution of RSA Third Amendment Bill
Negotiating Mandates from Nine Provinces on the Constitution of RSA Third Amendment Bill (e-mail [email protected] for documents)

SUMMARY
The Committee had previously raised concerns on the effect of the Bill. It alleged that the provision stipulating a mandatory intervention by provincial legislatures in the legislative affairs of the municipalities on budgetary matters, without prior consultation with the NCOP, would have the effect of reducing its parliamentary powers. The National Treasury was therefore called to clarify these concerns. It noted that this Bill is a very technical one, especially for non-lawyers. It further noted that the Bill does not necessarily reduce the powers of the NCOP. Instead, the contrary applies, since the Bill broadens the NCOP powers.

The Committee then discussed the negotiating mandates received from various provinces mandating their permanent representatives to negotiate on the Bill on behalf of their provinces. Members were instructed to go back to their respective provinces and come back with final mandates

MINUTES
The Chair noted that Members had raised concerns about the provisions of the Bill. They do not only give the provincial legislatures powers to supervise municipalities but also to intervene into their legislative affairs and dissolve them if they deem so fit.

National Treasury briefing
Mr I Momoniat (Deputy Director-General: Intergovernmental Relations, National Treasury) noted that the National Treasury had previously briefed the Committee on the Bill and during that briefing the purpose and objects of each clause were highlighted and motivated. On the concerns raised by the Committee regarding NCOP powers being reduced he assured Members that the NCOP powers has not been reduced by the Bill but enhanced.

He went through the Bill clause by clause and clarified the object and purpose of each clause. He noted that Clauses 1 to 3 of the Bill are technical improvements of Sections 76, 100 and 103 of the Constitution, respectively. Clause 4 intends to create legal certainty to municipalities in the manner they deal with financial emergencies and also extend such to the provincial legislatures. Therefore the provincial legislatures are obliged to intervene whenever there is a legislative failure relating to budget and revenue-raising in the municipal council.

He reminded Members of the fact that the entire reputation of local government has been seriously harmed by the failure of some municipalities to manage their finances. This has resulted in private sectors being reluctant to invest even in those responsible municipalities. The amendment is aimed at giving investors a reason to invest in the municipalities, and therefore help more South Africans gain access to affordable and quality services, knowing for sure that any financial failure on the part of the municipality would be dealt with. Therefore while the amendment strengthens the powers of provincial legislatures to exercise more oversight on municipalities, it also improves the powers of the NCOP since they are required to be informed on any decision taken. The NCOP also has the right to take the matter to court if it feels that the provincial legislatures exceeded their mandates when intervening under the mandatory intervention (Please see attached presentation.)

Discussion
Mr K Durr (ACDP) asked whether provincial Departments were consulted during the formulation of the Bill.

Mr Momoniat responded that various Departments have been consulted both on national and provincial level of government, including the MINMEC's. He was surprised that the Department of Provincial and Local Government was not present in the meeting since this is their joint venture.

The Chair noted that as Members have clarity on the Bill and its purpose they should forward the information to their respective provinces for the purposes of acquiring final mandates.

Negotiating Mandates from Nine Provinces on the Constitution of RSA Third Amendment Bill
The Chairperson requested Members to present negotiating mandates from their respective provinces.

Eastern Cape
Ms N Dlulane (ANC) [EC] said that the Eastern Cape Provincial Parliament fully supports the Bill with its proposed amendments.

Free State
The Chair noted that the representative from Free State was absent from the meeting and therefore requested Mr P Maloyi to read Free State's mandate.

Mr P Maloyi (ANC) [NW] said that the Free State Provincial Parliament supports the Bill without any amendments.

Gauteng
Ms J Kgoali (ANC) [Gauteng] said that the Gauteng Provincial Parliament fully supports the Bill with the following amendments:
-That notice of intervention should be submitted to the NCOP rather than tabled.
-That consistency should be maintained through the Bill in order avoid interpretation nuances.
-That a thorough process regulating interventions should be adopted.
-That the role of the NCOP should be enhanced and not be diminished.

Members should note that this was still a negotiating mandate and the position might change after the Legislature had received the explanatory note from the National Treasury.

KwaZulu-Natal
Prince B Zulu (ANC) [KZN] said that the KwaZulu-Natal Provincial Parliament supports the Bill subject to the following amendments:
-The IFP noted that the Bill deals with three separate issues. Namely the Bill Classification, intervention and changing the name of the Northern Province. These should have been dealt with in three separate Constitution Amendment Bills.
-The following provision in Clause 2(c) of the Bill "the intervention must end if the Council disapproves the intervention within 180 days after the intervention began" should be removed. It should be replaced by the following phrase "the intervention must end if, within 180 days after the intervention began, the Council fails to approve the intervention". Alternatively the following phrase "disapproves or" should be inserted prior to the words "fails to approve the intervention".
-Clause 4 should be amended so that it is in line with proper statutory drafting of a list. The body deciding on the intervention should be given powers to terminate the intervention.
Further noted that in the event of the Committee not concurring then the proposed amendments would be referred to the KZN Provincial Standing Committee on NCOP for its decision.

Ms Kgoali noted she understands that the Committee is still dealing with negotiating mandates, however notwithstanding that she feels that the negotiating mandates were suppose to reflect the position of the Provincial Legislature and not of a certain party.

Ms Mkhondlo (ANC) [Eastern Cape] concurred with the views of Ms Kgoali and further proposed that the Committee should request KZN to submit the negotiating mandate from the Provincial Legislature and not the one from a party.

The Chair noted the concerns raised by the Members. However, he requested the National Treasury to comment on the matter.

Mr Momoniat commended the KZN Provincial Legislature on having read the Bill. However, he noted that in so doing they have tried to separate the NCOP and the provincial legislatures and thus brought forth executive functions, which cannot be legislated. He noted that the explanatory note would be useful in assisting the provincial legislatures in preparing for their final mandates.

The Chair noted that notwithstanding the issues raised the KZN seems to be supporting the Bill and the Committee should wait for its final mandate.

Northern Province
Mr R Nyakane (UDM) [NP] said that the Northern Province Provincial Parliament has given its permanent members a mandate to vote in favour of the Bill and support it without any amendments.

Mpumalanga
Mr B Mkhaliphi (ANC) [Mpumalanga] noted that there seemed to have been some interpretation oversight regarding Clause 2 and he will therefore clarify this matter with the legislature. Notwithstanding that, the legislature has empowered its permanent members to support the Bill, on the basis of the proposed amendments.

Northern Cape
Ms E Lubidla (ANC) [NC] hoped that the Northern Cape Provincial Parliament would change its decision after hearing the presentation made by Mr Momoniat.

North-West
Mr L Lever (DP) [NW] said that the North-West Provincial Parliament mandated its permanent members to negotiate in favour of the principles embodied in the Bill. However, it requested clarity on the linkage between the Municipal Finance Management Bill and the Constitution of RSA Third Amendment Bill.

Mr Momoniat noted that Chapter 11 of the Municipal Finance Management Bill indeed applied to the proposed Bill and the National Treasury would submit to the Committee those parts of the Chapter applicable to the Bill.

Western Cape
Mr k Durr (ACDP) [WC] said that the Western Cape Provincial Parliament fully supports the Bill as it is.

The Chair urged Members to go to their respective provinces and inform them of the issues raised by the National Treasury in its explanatory note and thereafter come back with final mandates.

The meeting was adjourned.