Review of legislation: Department of Cooperative Governance and Traditional Affairs briefing

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Cooperative Governance and Traditional Affairs

28 February 2017
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Department briefed the Committee on its legislative programme for 2017, which included the Municipal Demarcation Amendment Bill, the Municipal Structures Amendment Bill, the Municipal Systems Amendment Bill, the Customary Initiation Bill, and the Traditional Leadership and Governance Framework Bill. The briefing included the timeframes for this legislative programme.

Municipal Demarcation Amendment Bill

The Amendment Bill spoke to the establishment, functions and general powers of the Board, membership of the Board, operating procedures of the Board and other administrative matters. It also spoke to demarcation and the determination of boundaries, demarcation objectives, public notification of determinations, demarcation affecting existing municipalities, formal investigations and the powers of investigating committees. It further spoke to the migration of demarcation-related provisions from the Structures Act to the Demarcation Act.

Members said the terms ‘geo statistical building blocks’ and ‘key demarcation stakeholders’ had to be defined. Members said the Appeals Committee in Section 21 had to be independent of the Board. Members also said that there were still many non-viable municipalities, yet the aim of the demarcation process was to get rid of non-viable municipalities. Members asked who were expected to serve on the Appeals Board and what other functions would they serve. Would a retired judge head the Board? Members said Section 24(2) on assessments were not available to communities, municipalities and stakeholders. A municipality assessment should not be older than 12 to 18 months and should be included before the Municipal Demarcation Board was determined and the reports should be made available to the public.

Municipal Structures Amendment Bill

The amendments to the Structures Act were informed mostly by proposals to address challenges that were experienced by the Independent Electoral Commission (IEC) during the administration and management of municipal elections. Other proposals were amendments to the Structures Act to promote certainty on some matters and to strengthen governance in municipalities.

Members said the document was very premature, that no thought was given on what proposals were usable and what were not. Members were concerned about increasing the size of ward committees and said that there was a cost associated with having ward committees. They indicated that some numbering in the presentation was wrong. They said the proposal that traditional leaders be permitted to vote in council meetings could not happen because councils were democratic representatives of people. The consultative role of traditional leaders needed to be defined. Members felt that the role of the Speaker to act impartially should also be included. Members said there was no clarity as to what extension of powers the Executive Mayor would get in Section 56. They also wanted clarity on the proposal to make it difficult to remove a committee member. They asked if traditional leaders only or traditional leaders and councillors provided feedback to the community.

Members said ward committees were not doing what was intended and ward committees became battlegrounds for scarce resources. Members said that there had to be careful attempts to find meaningful engagement with traditional leaders. Members asked why the Municipal Demarcation Board was not independent from the ruling party because the ruling party wanted to change boundaries when it lost ground. Were the powers of the municipal manager the same as the speaker? Members said that the removal of a member presupposed that the member was removed unfairly, but what if a member needed to be removed? They asked who were responsible for ward committees.  

Municipal Systems Amendment Bill

Amendments were proposed for Section 62, dealing with appeals; Section 103, on agreements with employers to collect municipal debt; Section 115, on the serving of documents and process; Section 118, on restraint on transfer of property and because Section 118 was constantly being tested in court; chapter 8A, on municipal entities, to create alignment with the Companies Act. The majority of these amendments were technical in nature.

Members asked how delivery of email was going to be proven. Members said there was no need for amendment to Section 52 because it was already covered. They were not convinced that arrangements with a third party could be entered into, to deduct money directly from their salary.

Customary Initiation Bill

The aim of the Bill was to hold people accountable for deaths at initiation schools through the introduction of regulations, because there was no legislation to make actions legal or illegal. Existing laws only dealt with certain aspects such as circumcision. The Bill was based on the principles of the Policy on the Customary Practice of Initiation in South Africa, developed by the Department of Traditional Affairs.

Traditional Leadership and Governance Framework Bill

The Bill addressed a number of challenges to the transitional arrangements in which tribal authorities had to be reconstituted into traditional councils within a specific timeframe as provided for in the Traditional Leadership and Governance Framework Act, 2003 and to ensure alignment of the terms of office of traditional councils with that of the National House of Traditional Leaders (NHTL). In many instances, not all the legal requirements were complied with in the establishment of traditional councils. There were similar challenges in respect of the dissolution of community authorities and with the terms of office. The National House of Traditional Leaders term of office expired in August 2017. This meant that all tribal authorities and traditional councils had to be reconstituted in 2017. The Department was aware that the Framework Act was to be repealed by the Traditional and Khoi-San Leadership Bill (TKLB) which was currently being considered by Parliament. The Traditional and Khoi-San Leadership Bill addressed the challenges referred to above. However, since it was uncertain when the Traditional and Khoi-San Leadership Bill would be enacted, it was advisable to amend the Framework Act to ensure that the required enabling provisions were in place by August 2017.

Timeframes

The timeframes for introducing this legislative programme to Parliament were: Traditional Leadership and Governance Framework Amendment Bill in May 2017, Customary Initiation Bill in September 2017, and the Municipal Demarcation Amendment Bill, Municipal Structures Amendment Bill, Municipal Systems Amendment Bill all in November / December 2017. Members expressed concern about the legislative programme timeline and said that action needed to be taken on the Customary Initiation Bill, because young men were dying while the Bill was not in place.

Meeting report

Municipal Demarcation Bill
Mr Charles Nwaila, Director General, Department of Cooperative Governance and Traditional Affairs, said the Municipal Demarcation Board’s proposed legislative amendments were on Section 1: Definitions - where the term “Manager” would be changed to “Chief Executive Officer” as the “Accounting Officer” in terms of Chapter 5 of the PFMA.

Section 4: Functions - where the “advisory role” section would be expanded to provide for the MDB to make recommendations to Parliament on provincial boundaries and recommend to MECs the allocation of powers and functions.

Section 5: General Powers - to allow that “The Board may generate revenue (for the purpose of funding organisational projects that cannot be accommodated from the allocation) as specified in Section 36.”

Section 9: Term of office - to extend the period of the Board to 10 years.

Section 11: Conditions of appointment members - to amend Section 11 to be in line with the PFMA and good corporate governance.

Section 15: Meetings - to amend to read that a Board member may not be absent from three consecutive Board meetings without leave of absence from the chairperson.

Section 17: Decisions - to amend to provide for deciding / casting vote by the Board Chairperson when a simple majority was not achieved.

Section 18: Committees - to amend to enable the Board to establish a Technical Consultation Committee (TCC) of key demarcation stakeholders to be consulted before any redetermination decisions are made.

Section 32: The term of office for the CEO must be aligned to the term of office of the Board.

Section 36: Funding - revenue generation must be “limited to…” and the conditions must be clearly stated. The objective for the additional funding/revenue must be stated.

Section 21: Determination of municipal boundaries - the establishment of an Appeals Committee. The term of office of the Appeals Committee will be in line with the term of the Board and it will function on an ad-hoc basis.

Section 24: Demarcation objectives - that the Board must conduct municipal capacity assessments.

Section 25: Factors to take into account - inserting the additional factor of geo-statistical building blocks.

Ward delimitation (New) - The Board must conduct ward delimitation in every municipality that qualifies to have wards, every 10 years, taking into consideration the electoral, planning and service delivery roles of wards.

Amendment of Sections 26, 27 & 28: Public participation - the repeal of Sections 26, 27 and 28 under part 3. These will be replaced by the new provisions on “Public participation”.  To provide mechanisms, processes and procedures and strengthen community participation in Demarcation Matters. 

Section 29: Formal investigations - to amend Section 29(1) to enable the Board to institute a formal investigation on any application, unless it was a minor technical adjustment or an application that can be dealt with in terms of a research/study/investigation already conducted by the Board in a period not longer than 18 months before the application was lodged.

Discussion
Mr Mileham (DA) asked what the key demarcation stakeholders for the Technical Consultation Committee (TCC) in Section 18 were. He said key demarcation stakeholders had to be defined. He said the Appeals Committee in Section 21 had to be independent of the Board. What was the definition of ‘geo statistical building blocks’? It had to be defined.

Mr Wanza Ramagaza, COO: Municipalities Demarcation Board, agreed that the term ‘key demarcation stakeholders’ had to be defined as well as their roles, similarly, for the Appeals Committee. He said the Appeals Committee was an opportunity to provide recourse for members of the public before the MDB finalised the demarcation process. The aim of its establishment was to decrease legal costs for communities who appealed the Board’s decisions.

The Chairperson said there were still many non-viable municipalities, yet the aim of the demarcation process was to get rid of non-viable municipalities.

Mr E Mthethwa (ANC) asked who were expected to serve on the Appeals Board and what other functions would they serve. Would a retired judge head the Board?

Mr Mileham said Section 24(2) assessments were not available to communities, municipalities and stakeholders.  A municipality assessment should not be older than 12 to 18 months and should be included before the MDB was determined and the reports should be made available to the public.

Mr N Masondo (ANC) said it would have been useful to talk about problems encountered over the last 20 years.

Mr Ramagaza said the Department was looking at an independent, but not full time, judge as chairperson for the Appeals Committee. He said the aim of the legislation was to try and tighten up legislation regarding Committee members before it became a problem.

Municipal Structures Amendment Bill
Mr Nwaila said that the amendments to the Structures Act mostly related to proposals received from the IEC. These proposals were informed by challenges that was experienced by the IEC during the administration and management of municipal elections. Other proposed amendments to the Structures Act were to promote certainty on some matters and to strengthen governance in municipalities.

The amendments covered electoral matters, governance, public participation, traditional affairs, and the migration of electoral-related provisions from the Structures Act to the Municipal Electoral Act.

Discussion
Mr Mileham said the document was very premature, that no thought was given on what proposals were usable and what were not. He was concerned about increasing the size of ward committees and said that there was a cost associated with having ward committees. He said the numbering in the presentation was wrong and that Section 18 was actually Section 81(2) and (3). On traditional leaders and the requirement for 20% of council to be traditional leaders, he said it did not make sense as one could not create traditional leaders.  The KZN proposal that traditional leaders be permitted to vote in council meetings could not happen because councils were democratic representatives of people. The consultative role of traditional leaders also needed to be defined. He felt that the role of the Speaker to act impartially should also be included. He said there was no clarity as to what extension of powers the Executive Mayor would get in Section 56. He wanted clarity on the proposal to make it difficult to remove a committee member. He was also concerned about the proposal around executive members and natural justice.

Mr C Matsepe (DA) asked if traditional leaders alone or traditional leaders and councillors provided feedback to the community, because he felt that in rural areas there was conflict when legislation was presented to them for public participation. It was the traditional leaders who would present. Traditional leaders were partisan and therefore did not give fair report backs to the community.

Mr Masondo said ward committees were being distorted and were not doing what was intended for them to do. Structures like businesses were not represented and ward committees became battlegrounds for scarce resources. On the question of consultation, he said that there had to be careful attempts to find meaningful engagement with traditional leaders. Traditional leaders complained that they could not see meaning for their participation in councils.

A Committee Member asked why the MDB was not independent from the ruling party because the ruling party wanted to change boundaries when it lost ground. Were the powers of the municipal manager the same as the speaker?

Mr Bhagha (ANC) said that the removal of a member presupposed that the member was removed unfairly, but what if a member needed to be removed?

Mr Matsepe said that constitutionally the traditional leader role was ceremonial. Who were responsible for ward committees?

Mr Nwaila said the traditional leader’s role was to facilitate with his village; to support municipalities in an advisory role in customary and traditional issues, dispute resolution and the ceremonial role. There were tensions between elected and traditional leaders because traditional leaders was initially established by the 1951 Black Authorities Act which gave them powers. They had acted like a municipality and the tensions were the hangover from that powers which lapsed in the new dispensation. Traditional leaders did not preside over boundaries; they had jurisdictional areas which could straddle municipalities. He said the royal Bafokeng had the best model of how traditional leaders should operate, being much more democratic and consultative.

Regarding comments that the documents were premature, Dr Kevin Naidoo, Chief Director, Department of Cooperative Governance Department, said that the documents derived from stakeholder comments. These were just proposals and the Department would be having a two-day workshop in the next few days where the proposals would be looked at intensively. He agreed that the roles and responsibilities could not just be federalised and it was his view that it should come from the national government.

Regarding the powers to Section 79 communities, he said there was an increase in municipal public accounts committees and they were becoming beacons of hope. Section 79 of the Public Structures Act said council could remove a member at any time and the aim of the legislation was to make it difficult to remove a member, when that member was doing the job well. The documents were raw, but all the inputs were for the benefit of improving local government.

Ms Tumo Diale said that the proposals were received from researchers and stakeholders and that work still needed to be done before the final document that would be brought before the Committee. On concerns that were raised regarding the increase in ward committees, she said that there was a blanket approach before, but a differentiated model, based on ward size and socio- economics was needed to address the challenges. Smaller wards were more effective than larger wards so there might be a need to increase the number of ward representatives in the larger wards.

Regarding the financial implications attached to this model, she said the Department was relooking the disbursement of out of pocket expenses. She said ward councillors called ward committee meetings. She said there were lots of challenges around the election of ward committees.

Regarding the proposed amendments to Section 81, Dr Rinaldi Bester, Department of COGTA, said it was unlikely that it would be legislated because the current Section 81 was very short and would be replaced by the TKLB version. Section 81 of the TLKB dealt with representation in detail and dealt with the roles and functions of traditional leaders. He confirmed that they could not vote. Regarding feedback to community, he said it would be through traditional councils. It also dealt with the code of conduct of traditional leaders and out of pocket expenses which were developed in conjunction with SALGA. Some municipalities were providing for tools of trade to traditional leaders in the guise of out of pocket expenses.

On Mr Bhaga’s question regarding the MDB, Mr Nwaila said the Department was too young to speak about that.

The Chairperson said he was worried that people would always expect to be paid in the structures being set up and that the Department should think of going back to people volunteering for the posts.

Municipal System Amendment Bill
Mr Nwaila said the majority of these amendments were technical in nature. The amendments were proposed for Section 62 to be amended to provide for the appeals process regarding “undisputed debt” as envisaged in the proposed Section 103 amendment.

Section 103 where the proposed amendment was to make provision for a municipality to be given powers “to appoint an agent” to collect municipal debt.

Section 115 where the proposal was to make provision for the serving of notices by means of ordinary mail and to recognise other established forms of electronic media.

Section 118 on restraint on transfer of property which would be beefed up, because it was constantly being tested in court. This would ensure that all amounts that became due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties were fully paid.

Chapter 8A was to create alignment with the Companies Act.

Discussion
Mr Mthethwa asked what input would be factored in their workshop; was it the committee input.

Mr Mileham asked how delivery of email was going to be proven if it was done electronically. He said there was no need for amendment to Section 52 because it was already covered. He said he was not convinced that arrangements with a third party like an employer of someone who owed a municipalities money could be entered into to deduct money directly from their salary.

Mr Nwaila said the Department would consider the proof of delivery issue and took note of the comments made by Members.

Customary Initiation Bill
Mr Nwaila said the Bill was to hold people accountable for deaths at initiation schools. There was no such thing as an illegal initiation school because there was no legislation currently to make this legal or illegal.

The Chairperson asked whether customary laws and traditions of communities were generally known and communities knew whether or not customary practices were being followed.

Mr Nwaila said the country did have the Health Act, but it was not detailed enough to cover customary laws. Over the past few years, the Department of Traditional Affairs had developed a Policy on the Customary Practice of Initiation in South Africa which was approved by Cabinet in April 2016. Cabinet also approved that the policy be converted into national legislation. Subsequently, the Customary Initiation Bill (CIB) was developed based on the principles contained in the policy. The big issue was the commercialisation of initiation schools.  

Mr Bhaga said this Bill would assist to enforce practices according to regulations because there was nothing holding people to account.

Traditional Leaders Governance Framework Amendment Bill
Mr Nwaila said the Traditional Leadership and Governance Framework Act, 2003 contained certain transitional provisions which dealt with the manner in which tribal authorities had to be reconstituted into traditional councils within a specific timeframe. The timeframe was not met and was extended, but lapsed in September 2011.

Unfortunately, in many instances the reconstitution into traditional councils did not occur or did not comply with all legal requirements. There were similar challenges in respect of the dissolution of community authorities. Another challenge was that the terms of office of traditional councils must be aligned to that of the National House of Traditional Leaders (NHTL). The term of office of the NHTL expired in August 2017 which meant that all tribal authorities and traditional councils had to be reconstituted in 2017.

To address the above-mentioned challenges and to ensure alignment of the terms of office of certain structures with that of the NHTL, it was necessary to once again extend the timeframes. All these challenges are therefore addressed in this Bill.

The DTA was aware that the Framework Act was to be repealed by the Traditional and Khoi-San Leadership Bill (TKLB) which was currently being considered by Parliament. The TKLB addressed the challenges referred to above. However, since it was uncertain when the TKLB would be enacted, it was advisable to amend the Framework Act to ensure that the required enabling provisions were in place by August 2017.

The Department put measures in place to have a national service provider in place to look at all legislative provision. They would prioritise the reconstitution of the Houses. Cabinet supported it and understood that it had to be expedited, so the Department wanted it to be treated as a priority bill.

The Department intended to introduce the Bills into Parliament as follows: Traditional Leadership and Governance Framework Amendment Bill in May 2017; Customary Initiation Bill in September 2017; and the Municipal Demarcation Amendment Bill, Municipal Structures Amendment Bill and  
Municipal Systems Amendment Bill all in November / December 2017

Mr Mileham was concerned about the legislative programme timeline and that action needed to be taken on the Customary Initiation Bill, because young men were dying while the Bill was not in place.

The Chairperson wondered why the NA and NCOP could not have joint meetings on the Bill.

The meeting was adjourned
 

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