The Committee met with the Department of Cooperative Governance and Traditional Affairs, (COGTA), the Independent Electoral Commission (IEC) and the Municipal Demarcation Board (MDB) to deliberate on the proposals made by different stakeholders concerning the Municipal Structures Amendment Bill. It was also briefed by a state law adviser on the tagging of the Bill, and the IEC presented the formula for calculating and allocating seats in wards and for proportional representation (PR).
Legal opinion was that the Bill should be tagged as a section 76, requiring the involvement of the National Council of Provinces, as it deals with public administration matters. However, it would be referred back to the Joint Tagging Mechanism (JTM) for reconsideration of whether it was a section 76 or section 75 (National Assembly) Bill.
COGTA provided input on the Bill from five provinces and from the South African Local Government Association (SALGA). It identified three issues for careful consideration by the Committee. It should consider the composition and size of municipal executive committees (EXCO), the formula for determining the number of councillors in a municipality, and the formula for determining seat allocations for wards and proportional representation.
The Independent Electoral Commission said the current PR system resulted in anomalies when there were many parties contesting, or when there were independent candidates, and where the electorate split votes. To address the anomalies, the IEC proposed that if there were excessive seats won by a party, that party should be excluded from the formula, and no further seats should be allocated to it in the PR. The other parties would then be allowed to contest for the remaining seats. Members said the system of allocating seats in both the wards and by PR was complicated, and needed to be carefully studied.
There was discussion on the clauses related to the calling of council meetings by the Speaker, and the proposed two-year cooling off period. Members were concerned that the financial implications of the Bill’s proposals had not been considered. They agreed that because of the late call for public comment on the Bill – and the constitutional need to consider all proposals made by stakeholders – the clause by clause analysis would take place next year.
The Chairperson opened the meeting by welcoming Members of the Committee and representatives from the Department, the Independent Electoral Commission (IEC), the Municipal Demarcation Board (MDB) and legal experts. He went on to remind Members that last week the Committee had requested a legal opinion on the tagging of the Bill. The Committee had needed to know whether the Bill fell under section 75 or 76 of the Constitution. If the Bill fell under section 76, the processing of finalising the Bill could take longer because it would have to involve the National Council of Provinces (NCOP). If it fells under section 75, then it would be dealt with only by the National Assembly. He requested the state law adviser to provide the Committee with its opinion.
Municipal Structures Amendment Bill: Legal opinion on tagging
Ms Aadielah Arnold, State Law Adviser, reminded the Committee that during the meeting held last week, Members were informed that the Bill fell under section 75. The Committee had also requested a legal opinion from an external counsel, and according to Advocate Jan Huenis, Senior Counsel, the Bill should be tagged as a section 76 Bill. His reasons were that the Bill also deals with matters relating to public administration, as provided in section 195 of the Constitution.
Ms Arnold said she had spoken to the Parliamentary Legal Adviser, and was informed that the Bill would be referred back to the Joint Tagging Mechanism (JTM) for reconsideration of the Bill as to whether it fell under section 76 or section 75. However, the process of reconsidering the Bill by the JTM would not affect the deliberations within the Committee.
The Chairperson thanked Ms Arnold, and said the Committee would proceed to deliberate on the Bill while it was being considered by the JTM. He requested Dr Naidoo to present the proposals from different stakeholders on the Bill.
COGTA: Comments and proposals from provinces
Dr Kevin Naidoo, Executive Manager: Department of Cooperative Governance and Traditional Affairs (COGTA) said his presentation would include comments or proposals from the different provinces, a formula for determining the number of councillors and executive committees (EXCOs).
The following stakeholders had made proposals which the Department had consolidated: The South African Local Government Association (SALGA), the MDB; the Western Cape Local Government Environmental Affairs and Development Planning; and the KwaZulu-Natal (KZN), Northern Cape, Free State and Mpumalanga COGTA departments. There had also been an advert during the weekend in newspapers inviting comments and submissions from different stakeholders before the end of next week.
The inputs and comments received from different stakeholders were grouped in three broad categories. The first category showed that out of 34 provisions in the Bill, no comments were received on 10 clauses of the Bill. These clauses were 11, 12, 13, 21, 22, 25, 30, 31, 33 and 34.
The second category consisted of clauses that were not controversial, and deleted perceived duplications in sections 12 and 16 of the Municipal Systems Act (MSA). However, because these provisions were perceived by different stakeholders as necessary, they should be retained as they were. The Western Cape Local Government indicated that they wanted clarity on clause 16 dealing with quorums.
The third category was about clauses dealing with a plenary type of municipality. The proposals that were made dealing with a plenary type municipality included a minimum of 15 councillors and a requirement of EXCOs. The clauses dealing with the calling of meetings by the Speaker and a two-year cooling off period were some of the clauses that were controversial. Dr Naidoo informed the Committee that these clauses required further deliberation. Proposals were also made relating to the function of Speakers
SALGA proposed that there should be a party whip and a chief whip for the council. It also supported the abolition of the plenary type of municipality, but indicated that it should only take effect from the next local government elections. In instances where there were smaller municipalities, it proposed that there should a collective executive system, with ward participation. SALGA also supported a minimum of 15 councillors and indicated that the policy framework for full-time councillors should be reviewed.
SALGA proposed that if the Speaker or Acting Speaker refused to call a meeting of the council as required, the Municipal Manager (MM) or, in the absence or refusal by the MM, the person designated by the Member of the Executive Council (MEC) for Local Government in the province may call and chair the meeting. The initial clause in the Bill omitted the MM from calling the meeting, but only indicated that the MEC may call the meeting. As such, SALGA was of the view that before the MEC intervened, the MM must be given a chance to call the meeting.
Further proposals were made by SALGA regarding the functions of Speakers. They indicated that the Speaker should ensure that Ward Committees and Councillors function effectively and the meaningful participation of traditional leaders in council. The Free State also made the same proposal.
SALGA also made inputs regarding the nominations of representatives in the EXCO. It proposed that the unauthorised representatives should not nominate a member of the EXCO. In respect of Ward Committees, SALGA provided a formulation on improvement of the existing clause. They indicated that the Speaker must, prior to the expiry of 120 days after the elections, request the MEC to nominate and that the MEC must respond within 14 days after receiving the request. SALGA proposed that the nature, stature and authority of Municipal Public Accounts Committees (MPACs) should be very similar to that of the Standing Committees on Public Accounts in both Parliament and Provincial Legislatures.
KZN COGTA proposed that there should be a minimum of 10 councillors. Their main reason was that a minimum of 15 councillors would have financial implications. It also proposed that section 23 B of the MSA must be retained, which allows the MECs to decrease the number of councillors as determined by the formula. They said section 27(e) of the MSA should be clarified and that notice of meetings should include all meetings for both committees and other ordinary meetings. In terms of section 139 of the Constitution, they proposed that the MEC in section 34 (3) and (4) of MSA should be replaced with the provincial executive to align the Act with the Constitution.
They suggested that the Speaker must be responsible for community participation functions, including elections and the effective operation of ward committees. MPACs should exercise oversight over the executive and administration of the municipality. The MEC should report a vacancy to the IEC if the MM did not do so within 14 days of a vacancy arising. In addition, a party may only change or supplement its list until a day after the first council meeting.
In terms of the Code of Conduct, KZN suggested the insertion of new item 15(5) to the Code, to read as follows: ‘If the Speaker of council was the alleged perpetrator, or the Speaker refuses to authorise an investigation, the council must establish a Special Committee, as contemplated in Item 16(b), to investigate and make finding on any alleged breach of this Code.”
Municipal Demarcation Board
The MDB proposed that the promulgation and date of effect for the MSA must be considered, in that the MDB expected the publication of the formula for councillors by the Minister in April 2019. It would wise to consider the Bill in parallel with the Demarcation Amendment Bill to ensure that certain sections that were either deleted or repealed from this Bill did not leave a policy or legislative gap.
The MDB also suggested that section 2 of the MSA should be migrated to the Municipal Demarcation Amendment Bill. The challenge of leaving section 2 under the MSA would mean that when the Municipal Demarcation Amendment Bill was processed, the MSA would need to be amended again. The rationale was to ensure that all provisions that direct the work and mandate of the MDB were consolidated into single legislation. Therefore, the MDB proposed that the Committee should reconsider sub-sections 3, 4 and 5 of section 85.
Western Cape Local Government
The Western Cape Local Government, Environmental Affairs and Development Planning, proposed that the tagging of the Bill should be reconsidered, and that the Bill should be edited by a legal editor. It did not support the abolition of a plenary type of municipality and suggested that transitional provisions would be required. Further, it did not support a minimum of 15 councillors because of financial implications. The two-year cooling off period was also not supported, and it suggested that the provisions could fail to meet the Constitutional test.
It recommended that ‘political office-bearer’ be defined in the MSA, and that sections 29(1) and 30(2) should be amended to provide clarity. Given section 22 of the MSA, which provides for the assumption of duty by councillors, the Western Cape proposed the deletion of section 22 (5) and 23 (5) as unnecessary. It also did not support the extension by three months for the cessation of by-elections, and pointed out that this may have an impact on municipalities with a participatory system because of the lack of representation in the ward, or may disrupt the responsiveness of the municipality to the communities.
It also suggested that clause 14, which provides for the calling of meetings by the MMs, should be reformulated. In addition, it proposed that definitions for ordinary and special urgent meetings of council should be inserted, and that the number required for a quorum to call for a meeting should be clarified. The legislative authority of the Municipal Council (MC) should be clarified, and the clauses on Ward Committees and MPACs should be reconsidered.
On the Code of Conduct, the Western Cape proposed that item 2 (b) of the Code must be redrafted because the words ‘credibility’ and ‘integrity’ were two different concepts that were seldom compromised at the same time. With regard to item 5(2) of the Code, they proposed that the words ‘must be removed from office as a councillor’ must be changed to ‘may be removed from office as a councillor’, to align the MSA with the rules of natural justice. It was also suggested that a person who could act as an initiator of the investigation should be appointed.
Western Cape also proposed that a new item 16(3) should be inserted for the clause to read as follows: ‘The MM must inform the MEC for local government in the province concerned within 14 days of the finding and sanction decided on by the council.’ Additionally, it said that item 16(7) of the Code, which refers to ‘rules of natural justice,’ means that the listed actions or aspects were subject to the Promotion of Administrative Justice Act, 2000, hence the recommendation that the wording should be redrafted to provide clarity.
The Northern Cape COGHSTA proposed that ‘Municipal Public Accounts Committee’ should be defined and that there should be a minimum of 15 councillors. The proposal for a minimum of 15 councillors was premised on the notion that 20 percent of 15 councillors resulted in the minimum size of an EXCO. It also proposed that “registered voters” should be replaced by “population,” with the aim of increasing the number of votes. The words ‘without just cause’ should be inserted in the clause which provides that a person designated by the MEC must call a meeting in instances where the Speaker or Acting Speaker refuses to do so.
It proposed insertion of a new item, 29A (1) and 29A (2). The new section 29A (1) suggested that a councillor must assume office within 14 days of being declared elected, by swearing, taking an oath or solemn affirmation of faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 7. Section 29A (2) recommended that before a councillor, Mayor, Speaker, MMC or EXCO begin to perform their functions, they must swear or solemnly affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 7.
The Northern Cape suggested that clause 43 dealing with EXCOs, and clause 73 relating to ward committees, should be redrafted. Additionally, where ward committees were unable to establish themselves, the IEC must intervene to establish ward committees for that municipality. It proposed that the election criteria for MPACs must be determined as prescribed in the schedule.
Regarding clause 26, which deals with the migration of section 85A from the MSA to the Demarcation Act, it was proposed that section 85 should not be migrated until the Demarcation Act clearly provides for such migration, to avoid leaving a legislative vacuum. Inputs were also made relating to clauses 29 and 30, which deal with amendments to electoral related matters.
The Free State COGTA made proposals similar to those submitted by SALGA. In addition to what SALGA suggested, Free State suggested that the size of ward committees should be reviewed. It also indicated that the Committee should determine whether the maximum of 10 members was sufficient for a municipality.
Mpumalanga COGTA supported the establishment of MPACs and whips forming a party and council. It proposed that section 81(2) be amended to allow for the identification of a person by the Traditional Leader (TL), where the TL was not in a position to participate in the proceedings of a municipal council, based on cultural or any other consideration.
The Mpumalanga Department of Traditional Affairs also submitted their views on the Bill. The Traditional and Khoi-San Leadership Bill included in one of the schedules a totally new section 81 which was doing away with the current system of identification of traditional leaders for participation in municipal council proceedings. The new clause provides that the Chairperson of a local house of traditional leaders, and two other members elected by the house, may participate for purposes of section 81. The clause deals with all different kinds of permutations, such as what to do if there was no local house of traditional leaders. The new clause was thus doing away with the need to have alternate members.
Dr Naidoo said there were three areas that required further deliberations by the Committee. The first issue was the composition and size of the EXCO. Section 33(c) of the MSA stipulates that a municipality may have an EXCO, if it has more than nine councillors. This means that if a municipality has more than 10, 11, 12 or 13 councillors, it should have an EXCO. A municipality which has 12 councils would have an EXCO of three members, because it would have complied with the requirement of a minimum of 10 councillors, as required by section 43 (1) of the MSA, even though 20% of 12 was 2.4. Therefore the minimum requirement of 15 councillors was not needed.
The second issue that the Committee had to determine was the formula for determining the number of councillors in a municipality. In terms of section 20, the number of councillors in a municipality must be determined according to the formula provided by the Minister. That formula should be based on the number of registered voters in that municipality. The number of councillors may not be fewer than three or more than 90 councillors if it was a local or district municipality. However, if it was a metropolitan municipality, then it should not be more than 270 councillors.
When the voters roll is published, the Minister must publish the formula to determine the number of councillors within three months after the publication of the voters roll. After the publication of the formula, the MEC determines the number of councillors in the Provincial Gazette. The MEC is allowed to deviate from the number determined by the Minister by not more than three, if 30 or fewer councillors have been determined, or 10% of the number has been determined.
Dr Naidoo said that if population was used to determine the number of councillors, the Northern Cape would be disadvantaged while Gauteng would benefit the most. The registered voters roll contained data which was auditable and updated all the time. That was why it was used instead of population in the allocation of seats, including in the national and provincial legislatures. Population surveys were done every 10 years, and this meant that the data was outdated. A study which had been conducted by the MDB revealed that there had been an increase in the number of councillors since 2000. Currently, there were 8 696 councillors across the country for both local municipalities and metros. However, if the provisions of the Bill were changed, there could be a decrease in councillors of 116.
The third issue concerned seat calculation, which was subsequently presented by IEC.
Independent Electoral Commission
Mr Granville Abrahams, Senior Manager: IEC presented the formula for seat calculations. He said the basis for seat calculation was section 157 (2) and (3) of the Constitution. Section 157 provides that national legislation must prescribe a system of either proportional representation, or a combination of ward representation and proportional representation. Section 157 (3) states that irrespective of the chosen option, ultimately the election system must in general result in proportional representation. Currently, the IEC system of selecting councillors was proportional, and this was a single determination.
Schedule 1 of the MSA provides how the quota of proportionality is determined. The first step is to determine a quota by using the total votes cast in a local election for both ballots of the wards and proportional presentation (PR). The reason why both ballots are used is to ensure that the constitutional requirements of proportional presentation are complied with. The formula to determine the quota was as follows; both ballots are divided by the number of seats in a council. The result would be a quota per seat. Further, the quota was then divided by total votes of a party to arrive at the total allocation as prescribed by the Constitution.
Mr E Mthethwa (ANC) proposed that Mr Abrahams should provide a summary of his presentation and an example of how the calculations were done so that the Committee could understand the formula.
The Chairperson agreed with him and directed Mr Abrahams to proceed with an example that he had prepared.
Mr Abrahams said that the formula used for seat calculations had some anomalies because the local government elections allowed for independent candidates to contest elections. He gave a demonstration of how seats were allocated by way of a hypothetical scenario which included a total number of registered voters, the number of seats available for allocation, the votes cast for all parties and votes for independent candidates. To arrive at a quota, the total number of all votes cast was divided by the total number of seats, less the number of independent candidates. The total votes of a party would then be divided by the quota to determine the number of seats each party was entitled to. If there were any remaining seats after allocating the available seats according to the formula, the remainder would be shared amongst parties with the highest decimal percentage.
Mr Abrahams reiterated that the formulas may result in anomalies. The legislation identified the anomalies and how they should be dealt with. For instance, if a party had insufficient candidates for the seats it was entitled to, such a party should supplement the list with another candidate within 48 hours. If a party failed to do so, the seat would be forfeited and would be reallocated to the remaining parties according to the same formula.
Since 2000, there had been an anomaly where a party had more wards seats than the allocated seats. The calculations that were done had resulted in more seats than the number of seats available, as prescribed by the Minister. The reason why this happened was because the electorate could vote for an independent candidate for the ward elections who may not be aligned to the vote cast on the party list. This meant that the electorate would be splitting the votes, and this may result in excessive seats. In such circumstances, it was impossible to take the seat away from party that had won the ward as stipulated in MSA.
Therefore, the IEC’s proposal to the Bill was that if there were excessive seats, the ward seats of a party that won should be removed from the formula, as well as the votes to calculate the allocation for proportional representation (PR). The remaining parties would then be allowed to contest the remaining seats, and the same calculations for quotas would apply.
Mr Mthethwa asked what happened when the electorate voted for a different party and for a certain ward councillor, which resulted in excessive seats. He needed to understand how the IEC would reduce the seat allocation where there were more seats won that the available seats as prescribed by the Minister.
Mr K Mileham (DA) pointed that in terms of the MSA and Constitution, once one took into account excessive seats and independent votes, it meant that the proportionality requirement would not be met.
Mr Abrahams replied to Mr Mthethwa’s question, indicating that where there were more seats won than the allocated seats, it meant that the party would have already exceeded what proportionality determined. Therefore, such a party would be treated the same way as an independent, and excluded from the remaining seats.
Ms B Maluleke (ANC) asked if one party that won all the wards was not entitled to PR.
Mr Abrahams replied that it would depend on the total seat allocation. The legislation stated that wards that had been won by a party should not be taken away. However, the IEC’s proposal was to take away all the seats and votes so that allocations could be done for the remaining parties. The reason was that the party would not get more seats than what were allocated or determined by the Minister.
Ms Maluleke said she did not understand why a party contesting for wards and PR should not be given all the seats won by that party. If a party had won all the wards, why should it not be entitled to PR?
Mr Mthethwa replied that such a party could not be allocated PR seats if it had won all the wards.
Mr Mileham said that the Constitution and MSA provided for a number of seats in council that were in proportion to the total votes received by a party. This meant that if a party wins, for instance 40% of the total votes cast, it should be entitled to 40% of the seats. However, when a party had more seats through the wards, it could not contest for PR because it would have already received the seats proportionate to its votes. The other parties were entitled to representation because of the proportionality requirement in the Constitution. Therefore, a party would not contest for PR if it had already achieved its seats through the wards.
Ms Maluleke disagreed with Mr Mileham, and said that the formula was not clear.
Mr Mileham responded that the Constitution did not allow a party to get seats which were not proportional to the total votes received by that party.
Ms Maluleke replied that her argument was based on the fact that the independent candidates contested for wards only, and not PR. Therefore, when seats were allocated, independent candidates would get seats from their ward contestation only, because they did not contest for PR. However, when a party contested in both wards and PR, such a party should be entitled to its PR seats, even though it would have obtained some seats from contesting in wards. She needed to understand if a party that contested in both wards and PR and got more seats in wards, was not entitled to PR seats.
Mr Abrahams replied that the reason why a party should be taken out of the formula was because the party would not be allowed to get more seats. Therefore, keeping them in the formula would not result in the party receiving more seats in the PR, since it would have gained enough seats from the wards. It would therefore be useless or unnecessary to keep such a party in the formula for calculating the allocation of the remaining seats. Members should understand that the current IEC system was proportional, as required by the Constitution, which provides that ‘in general,’ the result must be proportional. He did not understand the meaning of the phrase ‘in general,’ however, and said that it was usually unlikely to get proportional results in elections because of unforeseen anomalies and rounding errors.
The Chairperson said he understood that all elections in South Africa were based on the principle of proportionality, because the system seeks to accommodate many parties and independent candidates. The more a party wins votes, the more it loses PR seats because of the proportionality requirement. The totality of votes was proportional, and all parties should be accommodated. He said the concept of proportionality was complex for people to understand, and Members should apply their minds and determine whether to amend the current position or not.
Mr Abrahams said the proposal of the IEC which the Committee should consider was how to deal with the anomaly of excessive seats and not the formula for allocating or calculating seats.
The Chairperson said that since the Committee was amending an existing law, there should be clear guidelines to make it easy for people to understand. He had once attended a meeting with people who drafted the MSA, but those people did not understand and could not explain how the system functioned. This was a problem and should be addressed so that the legitimacy of elections was not questioned, and to avoid parties taking each other to court.
Ms Maluleke asked what would happen where two parties, contesting in local government elections where there were 50 seats in the municipality, and one of the parties wins 25 ward seats -- did it mean that they would not get PR seats?
Mr Abrahams responded that the answer depended on the total number of votes cast for that party. If the party had received 50% of the total votes or less, then such a party may not get PR seats. However, the party would be allowed to contest for PR seats if it had received 60% of the total votes cast.
Mr J Dube (ANC) said there would be inconsistences when the electorate voted for one party in the ward and voted for the other in the PR. However, all extra seats must be allocated to the party that was entitled to those seats.
Mr Mthethwa reiterated his question on how the formula worked when the seats were excessive. He stated that it was easy to deal with seats where they were not excessive. The formula needed to be rationalised for the anomalies that may be experienced where the number of seats should be reduced so that they fell within the Minister’s prescription.
Mr Mileham said that Mr Mthethwa’s concern was one of the reasons why the amendment was proposed. He was happy, because the amendment dealt with seat allocation in an appropriate manner and consistently over the years. There were anomalies that had happened in many elections in the past.
Mr Abrahams said that there were many factors that could influence the outcome which may not be desirable for Members. For instance, voter turnout and vote splitting influenced the results. If voter turnout was low, it meant that the quota would be low. The number of parties also influenced the outcome, because more parties resulted in vote splitting and therefore reducing the number seats for each party. However, voters had a right to a secret ballot, as required by the Constitution. Furthermore, a voter may vote for a ward councillor who was not affiliated to any party or for a different party than they would vote for in the PR.
The Chairperson agreed with Mr Abrahams and said that the formula must not be flexible to suit any party, but must be consistent. He asked Members to comment on the presentation of Dr Naidoo.
Mr Mileham asked Dr Naidoo to explain the position of the COGTA Department. He wanted to know what the best inputs were from different stakeholders which the Committee should consider, and the reasons. He was concerned about the lack inputs on the financial implications of the Bill. There was no justification for why the plenary type of municipality should be deleted. He also wanted to understand what COGTA thought about the right size of councils.
The Chairperson said that COGTA was not a law maker, and only made proposals which Members should interrogate. COGTA could justify their position but it was the responsibility of the Committee to make the law. The Members should therefore discuss the proposals and come to a conclusion on all the proposals.
Mr Mthethwa thanked Dr Naidoo for the presentation and indicated that it simplified the process for the Committee. He went on to suggest that the Members should agree not to waste time on clauses that were not controversial, as suggested by Dr Naidoo.
The Chairperson said that Dr Naidoo’s presentation consisted only of proposals made by different stakeholders. He was on the view that SALGA should have consolidated the views from all local authorities and submitted the views of those municipalities. The presentation was helpful because Members would have to deal with each proposal on a clause by clause basis. The different stakeholders would have to be called to justify their proposals to assist the Committee when deliberating.
Mr Mthethwa agreed with the Chairperson that the presentation had made it easy for the Members to understand the critical clauses that needed to be discussed. He said he wanted clarity on COGTA’s position pertaining to section 33 (c). He said that the Constitution was clear as to the number of councillors required for a municipality to have an EXCO. Members should adopt the proportional requirement of the Constitution, which meant that a municipality would have an EXCO if it had no fewer than nine councillors, to accommodate all municipalities that may have more than nine councillors. The Committee should not waste time on clauses that were not controversial, where the different stakeholders had submitted similar proposals.
Mr Mileham disagreed with Mr Mthethwa’s suggestion.
Mr Dube indicated that the purpose of the meeting was for Members to understand the position of the different stakeholders. As such, they would meet to deliberate on each clause taking into account the proposals submitted. He suggested that the meeting be adjourned.
The Chairperson agreed with Mr Dube that the meeting had only been for Members to understand the critical issues that should be discussed by the Committee. The three issues identified that the Committee would deliberate on were:
- whether to use population or voters for determining number of councillors in a municipality;
- the seat calculation formula; and
- the composition and size of EXCOs.
The other issues in the Bill would be dealt with when Members deliberated clause by clause. He suggested that the following day the Committee should meet at 10h00 to deliberate on all the clauses.
He asked Dr Naidoo to make his final comments and respond to the issues raised by the Members.
Dr Naidoo responded that the position of COGTA was what was contained in the current Bill. The Department was of the view that it should understand the position of the Committee before indicating its final position. Furthermore, there was a process under way, in which Parliament had placed an advert for other stakeholders to make submissions on the Bill. Therefore, it was important for the Department to consider those submissions before consolidating its final position.
He replied to Mr Mileham’s question concerning the financial implications of the Bill, stating that many changes had been made in the Bill. However, when the Memorandum of Understanding of the Bill was done, there had been an omission of the financial implications. The issue had been raised in various committees, and COGTA had omitted them. At a previous meeting, the Department had alluded to the financial implications of the Bill in respect of the different sizes of municipalities and the number of councillors in a municipality. The Department had been playing a major role as the custodian of the Bill.
He reminded that the Committee that at the previous meeting, he had said that COGTA had adopted a minimum of 15 councillors, and that the decision had been made after a through engagement with stakeholders on all the clauses of the Bill. However, some stakeholders that the Department should engage with were waiting for substantive comments from the Committee for them to make their proposals. He concluded that COGTA would engage further with the Committee on all the clauses
Mr Mileham asked for clarity on when the submissions that were called for in the advert would be made. When was the closing date for the public to make submissions on of the Bill?
The Chairperson responded that the closing date was 30 November 2018
Mr Mileham said that the Committee could not consider the clauses before getting submissions from the public, because those submissions should be considered as well. Disregarding the submissions made by the public would be a breach of the Constitution by not allowing public participation. He pointed out that the Restitution of Land Rights Amendment Bill had ended up in the Constitutional Court because the NCOP had not properly done public consultations. He urged the Committee not proceed to consider all the clauses until the submissions from the public had been received.
Mr C Matsepe (DA) agreed with Mr Mileham.
The Chairperson also agreed with Mr Mileham, and pointed out that by 7 December, the Committee would be on recess until next February. The Bill would therefore have to be considered next year and that would have implications for the Demarcation Bill, since the Demarcation Bill should be considered two years before elections. He emphasised that the views from the public should be considered, but the NCOP also had to work on the Bill. According to the Parliamentary programme, the Bill could not be finalised this year. However, he was of the view that the Bill was urgent, as directed by the executive.
Mr Dube agreed with the Chairperson, and said that processing of the Demarcation Bill should commence as soon as possible to address matters relating to local government elections. The programme was tight, but the process of amending the Demarcation Act should commence even before the Bill was completed.
The Chairperson suggested that the Committee should find time to work on the Bill, since the Parliamentary term would end soon. When communities or people made submissions, the Committee could not disregard them. It would not be practicable to consider the submissions and deal with all the clauses of the Bill before 7 December, so the clause by clause analysis could only be done next year. The Committee should allow the public to make its submissions and then consider them.
Mr Mthethwa said he did not understand why the advert calling for submissions had been published very late.
The Chairperson thanked the legal team, Dr Naidoo from COGTA, and the IEC for their presentations, saying that made it had made it easy for the Committee to understand the critical issues in the Bill and the seat calculation formula.
The meeting was adjourned.
- COGTA - Comments on the LG: Municipal Structures Bill, 2018 (Version 1: 20 November 2018)
- IEC - Seat Calculation for Local Government
- Legal Opinion - Tagging of Municipal Structures Amendment Bill
- GOGTA - Local Government: Municipal Structures Amendment Bill
- Local Government: Municipal Structures Act: Formulae for determination of the number of Councillors of Municipal Councils
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