Northern Cape Province proposed that the minimum number for councillors in a municipality should be 15. It wanted the geographical size of a municipality to be a criterion when determining the number of councillors. This would mean there would be a minimum of 8 wards in a municipality. It proposed deleting sections 7(c), 9(e), 9(f) and 10(c) to do away with the plenary-executive type municipalities. The aim is to do away with the plenary type and remain with the collective and mayoral executive type of systems in municipalities and this would retain the collective and mayoral executive type of systems in municipalities. A minimum of 15 councillors in a municipality would achieve the minimum number of 3 members in the executive committee. 15 is the only number if divided by 20% where one would have 3 as the minimum number of members of an Exco as per section 43 that determines the number of Exco members. If one increases the 20% to 30% under section 43 and decrease the number of minimum councillors, the wards would decrease. The objective is to comply with section 152 of the Constitution, improve governance and deepen democracy by having more wards.
Northern Cape said the formula for the determination of number of councillors was based on the total number of registered voters in the municipality segment of the national common voters roll. The MEC determines the number of councillors from the formula. The number of registered voters determines the number of councillors. The number of councillors determines the type of municipality: section 20(1)(b) & (c). An option would be for the formula to be based on the number of total registered population by census rather than voters roll. This is aimed at addressing the geographical spatial patterns in a municipality.
Northern Cape proposed amending section 73 so municipalities must establish ward committees within 120 days after the election of a municipal council. If a municipal council does not comply within 120 days or after an extension from the Minister, the IEC must be authorised to establish wards for the municipality. It also proposed the insertion of new section 79A to provide for the establishment of an oversight committee to strengthen oversight and promote governance in municipalities; to indicate which councillors would be members; and to stipulate their roles and responsibilities.
The Western Cape Province said the deletion of the plenary system of governance would restrict the governance structure options that an MEC might consider appropriate. The increase of the minimum number of councillors from three to 15 was problematic. The Western Cape has three small municipalities (Laingsburg, Kannaland, Prince Albert) that have seven councillors each. The proposed amendment may have unintended financial implications for smaller municipalities that do not require 15 councillors. It seemed a one-size-fits-all approach was being adopted regardless of the population size or the needs of the municipality.
Members suggested the Committee not engage with the stakeholders but wait for COGTA's response to the stakeholder submissions. Members asked what Western Cape meant about a ward vacancy extension from six to nine months would have cost implications and how that would cause protests. They asked for a rationale for the introduction of a cooling off period for a person to be eligible to stand as a councillor again after being removed from office as a councillor.
Members said the Northern Cape submission has great financial implications and asked how they would finance the municipality if they were increasing the number of councillors. They asked if the proposed formula was a standard one and if it was used by the IEC and why they were giving the responsibility of establishing ward committees to the IEC.
The Committee agreed that the Municipal Structures Bill should be tagged as a section 75 Bill (not affecting the provinices). The parliamentary law advisor reasoned that the Bill was not invoking section 76(3)(d) of the Constitution as it was dealing with a political structure of government, elections and councillors but not public administration. The DA disagreed.
The Committee adopted the Customary Initiation Bill.
Western Cape Department of Local Government submission
Ms Thobela Mdledle, Deputy Director for Legislation Development: Western Cape Department of Local Government, said it was the view of the Western Cape Government that the deletion of the plenary system of governance would restrict the possible governance structure options that an MEC might consider appropriate. The increase in the minimum number of councillors from three to 15 was problematic. The Western Cape has three small municipalities (Laingsburg, Kannaland, Prince Albert) that have 7 councillors each. The amendment may have unintended financial implications for smaller municipalities that do not require 15 councillors. It seemed a one-size-fits-all approach was being adopted regardless of the population size or the needs of the municipality.
The prohibition of a councillor to stand as a candidate in an election, as a result of removal by an MEC, may not be in line with the Constitution. The amendment limits a citizen’s right in terms of section 19 read with section 158 of the Constitution. A vacancy in a ward may impact municipalities with a participatory system because of the lack of representation in a ward. An extension of the vacancy period from six to nine months was even more problematic as it may disrupt the responsiveness of the municipality to the constituent community in the affected ward and have cost implications. This is evident by the increase in number of community protests just before elections.
Clarity about the majority or quorum of councillors in sections 29 and 30 of the Act is required. Municipalities in the province were experiencing challenges in the interpretation of a majority of councillors or quorum. The suggestion to municipalities in the province was to amend their Rules to include definition of a quorum.
Northern Cape submission
Mr Mogami Manyeneng, Director for Municipal Governance: Northern Cape Department of Co-operative Governance, Human Settlements and Traditional Affairs, said the formula for the determination of number of councillors was based on the total number of registered voters on the municipality’s segment of the national common voters roll. The MEC determines the number of councillors from the formula. It wanted the geographical size of a municipality to be a criterion when determining the number of councillors. The aim was to comply with section 152 of the Constitution, improve governance, and deepen democracy by having more wards.
Northern Cape proposed the deletion of section 7(c), 9(e), 9(f) and 10(c) to do away with the plenary-executive type municipalities. This would retain the collective and mayoral executive type of systems in municipalities.
The Northern Cape proposed that the minimum number for councillors in a municipality should be 15 because the number of councillors is the only determining factor for the number of wards. This would mean there would be a minimum of 8 wards in a municipality. Option 1: This is because 15 is the only number if divided by 20% would give three as the minimum number which is required to qualify for an Executive Committee (as per section 43 that determines the number of ExCom members). Option 2: The formula is based on the number of total registered population by census rather than voters roll. This is aimed at addressing the geographical spatial patterns of the province where a municipality can be greater than 20,000 square kilometres.
The Northern Cape proposed amendments to sections 22 and 29 so an elected councillor would be deemed to assume office on the date of the declaration of the results of an election, and that a person designated by the MEC must call a meeting in instances where the Speaker/Acting Speaker refuses to do so without a just cause. The insertion of proposed section 29A(1) aimed at ensuring that the first municipal council is not saddled with debates on which provision requires councillors to take an oath or affirmation and confirms the first council meeting to be the first day of employment of councillors.
The Northern Cape proposed amendments to section 73 for municipalities to establish ward committees within 120 days after the election. If a municipal council does not comply within the 120 days period or after an extension from the Minister, the IEC must be authorised to establish wards for the municipality. It also proposed the insertion of section 79A to provide for the establishment of an oversight committee. This was aimed to strengthen oversight and promote governance in municipalities and to indicate which councillors would be members and their roles and responsibilities.
It proposed the insertion of a new schedule 7 to provide for the swearing in or affirmation of ordinary councillors / mayors / speakers / members of the mayoral committee (MMCs) / executive committee (Excom) members. Lastly, the province proposed the amendment of the 15 July 2009 Regulations on the formulae for the determination of the number of councillors. This would provide a formula that would give effect to an increased number of wards. The Electoral Act could continue to use the number of registered voters, but the Municipal Structures Act should use the registered population census numbers. (Tables were shown to illustrate the effects of the proposed changes to Northern Cape municipalities)
Ms B Maluleke (ANC) suggested the Committee should not engage with the stakeholders but wait for the responses to the proposals from the national department, COGTA. She said it was good to see that when the Western Cape criticised, it also brought solutions.
Mr K Mileham (DA) asked for clarity on the idea that the amendment was in conflict with the Constitution because section 58 of the Constitution was clear on who may become a councillor. He wanted to understand how that could be said to be a conflict when a person who has been found guilty by a municipality must cool off for a two year period. He asked how the dilemma would be resolved when a person could be appointed the very next day after that person has been expelled. The Bill introduces only a cooling off period, but it does not explain the rationale behind it. He stated that does not render the councillor ineligible to vote.
Mr Kamal Makan, Western Cape Director for Municipal Governance, replied that they have illustrated detailed solutions in the submission to the Committee. What they presented today was just a summary of the detailed submission.
Mr J Dube (ANC) asked what it meant by the vacancy period extended from six to nine months would have cost implications and cause protests in the municipality.
Mr Makan replied that the first cost implication was increasing the minimum number of councillors from 3 to 15 in low-capacitated municipalities. Increasing the time frame from six to nine months you would be fueling gaps the communities might be experiencing. In the Western Cape there has been a spurt of protests, especially if there is no representation for people in the affected municipality. Protests have cost implications for the municipality. The community would be in distress as there would be no one to service it and that would lead to destruction of property.
Mr Dube remarked the submission has lots of financial implications. Many rural municipalities are in distress and rely on the Municipal Infrastructure Grant (MIG). The submission was very scientific. The lesser the number, the more consultation was going to be efficient. The number must be less for effective functioning of the community.
Mr Manyeneng stated this would require additional funding and they would weigh the options between the financial implications and what was important. Consultation was not the only thing they were looking at. He said there was a small municipality where the Mayor was also the Speaker. It is important to separate the functions of Speaker and Mayor.
Mr Mileham asked how they intend to finance the municipality if they increased the number of councillors. In the Mier Municipality they proposed one councillor per 309 voters. There was no explanation how they got to the number of 15. It seemed they have adopted a one size fits all approach for such a small municipality.
Mr Manyeneng replied that all calculations in the tables were premised on the figures for registered voters and the population census. It was the voters' roll that determined the number of councillors.
Mr Mthethwa asked if the proposed formula was a standard one and used by the IEC to assess the country.
Mr Manyeneng said it was the formula of the Minister which is premised on the number of registered voters. The Northern Cape did not come up the with the figure of 2 055 used in the formula. The total number of registered voters next year is the number that is going to be used to calculate the number of councillors.
Mr Mileham said his point is that each councillor represents 400 voters. He asked how it was going to be fair if a number of 125 that voted was going to translate to 15 councillors. He asked why they could not stick to the minimum of seven councillors.
Mr Manyeneng said everyone knows elections are run on the number of registered voters. The proposal was that they amend the clause to use the census figures.
Mr X Ngwezi (IFP) questioned the analysis. The councillor represents everyone in the ward. Voting was not compulsory. The recommendations should make voting compulsory. The procedure in use was registered voters. Since voting is optional that was where the problem was.
Mr Mileham said that the submission had fundamental flaws. If the 20% formula was not working, you could not have less than three members in the executive council. Section 43 was clear on the matter. You cannot have more than 20%.
The Chairperson indicated the matter was still going to be debated. The formula was something they needed to take into consideration. However, they still have to consider why Northern Cape suggested 15 councillors because many small municipalities were struggling financially.
Mr Dube asked why Northern Cape was taking the responsibility of establishing ward committees to the IEC.
Mr Manyeneng replied that they suggested that Speakers already know that ward committees must be established within four months. They should not be granted an extension for failure to do so. Instead the responsibility must be removed from the Speaker and be given to the IEC. There was a proposal that municipalities must be granted an extension by MECs to approve or disapprove and report to the Minister. The MEC was overseeing the municipalities because the MEC is a political head. It was agreed the role should be taken away from the municipalities.
Mr Sonwabo Gqegqe, SALGA Acting Executive Director: Parliamentary Affairs, suggested that when the Committee looks at the Bill, more time should be given at presenting the perspective from a figures point of view. There was mismatch for development at local government. The use of numbers (population figures in a municipality) disadvantages development in small communities. The number could not be the primary determinant. Communities need to enjoy the benefits of democracy equally. There were good proposals from the provinces that should be taken note of.
Local Government: Municipal Structures Amendment Bill tagging
The Parliament Legal Advisor said they have tagged the Bill as section 75 Bill. They had looked at the SAMWU judgment South African Municipal Workers' Union v Minister of Co-Operative Governance and Traditional Affairs (CCT54/16)  ZACC 7; 2017 (5) BCLR 641 (CC) (9 March 2017), Liquor Bill case and Hlongwane case. Looking at these cases, a Bill would be tagged a section 76 Bill if it provided for legislation mentioned in paragraph (a) to (f) of section 76(3). That was where the argument was raised why the Bill should be tagged 75. It would also be tagged section 76 if it provides for legislation envisioned in Chapter 13 of the Constitution. The court looked at the SAMWU judgement and decided the Bill should be tagged section 76 because it dealt with municipal managers and therefore falls under public administration. The Municipal Structures Amendment Bill was different because, in their opinion, it was not dealing with administration in local government, but with political structure, elections and councillors. The Bill was not invoking section 76(3)(d) of the Constitution. Therefore, they decided to tag it as a section 75 Bill, not a section 76 Bill.
Mr Mileham said he was in disagreement with the legal opinion because the Constitution talks of public administration although it does not define it. High standards of public administration are mentioned and they include high professional ethics, efficient use of resources, transparency, and responding to people’s needs. The argument was that the insertion of section 24 in the Bill directly affected the issue of high professional ethics, and, therefore, was directly applicable to mention of high standards of public administration. As such it should trigger section 76(3)(d) which would make this a section 76 Bill.
The Chairperson said the Committee should tag the Bill as section 75 because the parliament lawyers have consulted on the matter. If the Committee was proven to be wrong in a court of law, the lawyers would defend it because they were capable.
Mr Mileham insisted it was important to get another opinion to ensure all loopholes were covered. The tagging was controversial and was accompanied only by three short paragraphs. There have been pieces of legislation that came to the Committee with incorrect tagging.
The Chairperson maintained the lawyers would look at the matter, and if it was proving to be a problem, they would report back to the Committee.
Customary Initiation Bill: adoption and Committee Report
The Chairperson took the Committee through the Committee Report.
Mr Dube suggested it was important to engage with the Department of Social Development, especially on the clause that talked of circumcision for those under 16 because the proposal said it could be done under medical and religious circumstances. Religion is part of culture. It was important to take into account the public hearings. The paragraph that dealt with the KwaNdebele matter should be deleted because it was not what the Committee wanted to communicate.
Mr E Mthethwa (ANC) said the Committee had noted the concerns. The only thing it had to do was to adopt the report.
Mr C Matsepe (ANC) reminded the Committee it agreed it would take regional variances into account on this matter because in Limpopo they go to circumcision at an early age.
The Chairperson noted that they could not take a general approach to circumcision. That was why it was stated there should be involvement of the Department of Social Development to ensure there was consistency with the Children's Act and the Amendment Bill that it was busy developing.
"The Committee also notes and calls for the resolution of the anomalies in the Children’s Act, which criminalises the cultural circumcision of children under the age of 16".
Mr Mileham proposed inserting "and thus creating conflict with existing cultural norms and practice" be inserted at the end of that sentence. He suggested the Report should note that the Committee experienced challenges with regard to marginalisation of women because women staged a walk out during the public hearings in Port Elizabeth.
The Chairperson said that could be reworded although there were only few challenges in Mpumalanga and Port Elizabeth. But, generally, women made a good contribution.
Mr Mthethwa suggested it should be noted the incident happened in KwaNdebele, but not in the whole of Mpumalanga Province.
The Chairperson assured the Committee the affected paragraph would be reworded.
The main thing was to cover those doing circumcision to under 16 year olds, but not those doing initiation.
The Committee Report was adopted with minor amendments.
The Chairperson noted the Committee had completed the Bill and it would be taken to the National Assembly. It probably would come out next month or in January 2019. Parliament has decided to deal with the urgent Bills that do not have to wait for the new administration.
The meeting was adjourned.
- Customary Initiation Bill [B7B-2018]
- Legal Opinion on Tagging of Municipal Structures Amendment Bill
- Proposed Amendments to Customary Initiation Bill [B7A-2018]
- Western Cape Local Government - Local Government: Municipal Structures Amendment Bill, 2018
- Northern Cape Government: Local Government: Municipal Structures Amendment Bill, 2018
- COGTA briefing on MSA Bill & stakeholder submissions
- Committee Report on Customary Initiation Bill
- Western Cape Government submission on Municipal Structures Amendment Bill
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