Traditional Leadership and Governance Framework Amendment Bill [B8D-2017]: adoption; Municipal Structures Amendment Bill: deliberations
Cooperative Governance and Traditional Affairs
05 December 2018
Chairperson: Mr M Mdakane (ANC)
The Department of Traditional Affairs presented the changes to the Traditional Leadership and Governance Framework Amendment bill. Only three changes had been proposed by the National Council of Provinces (NCOP). One substantial addition was a provision for the establishment of a queenship council. The Committee accepted the amendments that had been proposed by the NCOP.
The Department of Cooperative Governance briefed the Committee on the proposed amendments to the Local Government: Municipal Structures Bill. The presentation focused on clauses that had been worked on after the meeting the Department had had with the Committee the previous day.
The amendment to clause eight reads: “A deviation in terms of sub-section three may not be more 20 percent of the geographical size of the municipality if the municipality is more than 20 000 square kilometers and, if less than 35 councillors has been determined, any deviation must be done with the concurrence of the Minister.” The Committee had a problem with this amendment because it did not provide a constraint on the size of the deviation if there were more than 35 councillors, or if it was more than 20 000 square kilometers.
The Committee also had a problem with the removal of the “40 councillors” requirement for having a whip of council. The argument was that the position of whip of council was likely to become a full-time position, which would require funding, and small municipalities would not be able to afford this. The Committee was not happy with the idea of removing the qualification and leaving the decision entirely to the Minister, because there was a possibility that the decision could be influenced by political circumstances. Sticking to a number that was stated in the legislation was therefore better than leaving it the discretion of the Minister.
Other concerns raised by the Committee involved the timeframe for public notices on council meetings, informing the chief electoral officer about a vacancy, and investigations around the misconduct of councillors.
Traditional Leadership and Governance Framework Amendment Bill: NCOP changes
Dr Rinaldi Bester, Chief Director: Legislation, Department of Traditional Affairs, presented on the three changes that had been made to the Traditional Leadership and Governance Framework Amendment Bill by the National Council of Provinces (NCOP).
Firstly, all references to the bill being a 2017 bill had been changed to 2018.
Secondly, a provision was made for the establishment of a queenship council. This was done with the following insertion in clause one on page two, after line 17:
“(c) A kingship or a queenship, other than a kingship or queenship contemplated in paragraph (b) that has been recognised before the commencement of the Traditional Leadership and Governance Framework Amendment Act, 2018, must, within two years of such commencement, establish a kingship or queenship council.”
The third amendment was made to clause three, specifically page 3, line 4. "One year" was omitted and was substituted with "two years"
Ms Phumelele Ngema, Parliamentary Legal Advisor: Parliament, told the Committee that the NCOP required the Portfolio Committee on Cooperative Governance and Traditional Affairs to consider the three amendments. If it accepted the changes, the bill would go back to the House for approval.
The Chairperson announced that Committee accepted the changes that had been made.
Local Government: Municipal Structures Bill: Proposed amendments
Dr Kevin Naidoo, Executive Manager: Municipal Governance, Department of Cooperative Governance (DCoG), presented on the proposed amendments to the Local Government: Municipal Structures Bill.
The clause that had been worked on after the previous day's meeting was 15.
The first clause, clause one, needed a definition of Municipal Public Accounts Committee. The definition had now been provided. The simple definition was that it made cross reference to section 79A in the bill.
Clause eight had been worked on. This clause dealt with the determination of the number of councillors. A whole new formulation of the section had been provided. The new formulation requiredA and B should be retained. The new C would be the clause in the bill that for a deviation of not more than 20 % when it came to municipalities which were larger than 20 000 square kilometers. The D part of clause eight states that any deviation that the Member of the Executive Committee (MEC) would apply, would require the concurrence of the Minister.
Clause 19 was about full-time councillors. The clause had been revised to remove the qualification of the 40 councillors’ requirement. This could be dealt with in the policy framework for full time councillors that the Minister published in the government gazette.
Mr J Dube (ANC) wanted clarity on clause 19, specifically on the sections relating to the election of a whip, the removal from office, and acting whips.
Mr K Mileham (DA) suggested the need to amend clause 19 -- clause one of schedule three. The clause talks about a Mayor, Deputy Mayor, Speaker etc, but it does not include “whip.” The word "whip" should be inserted.
He was concerned with the wording of clause eight. When merged into the principlal Act, it takes and replaces paragraph four completely. It would read, "A deviation in terms of sub section three may not be more than 20% of the geographical size of the municipality, if the municipality is more than 20 000 square kilometers, and if less than 35 councillors has been determined, any deviation must be done with the concurrence of the Minister." He said it did not take in to account paragraph B of sub-section four of the principal Act. The clause did not provide a constraint on the size of the deviation if there were more than 35 councillors, or if it was more than 20 000 square kilometers. Replacing paragraph four deletes sub-clause B of the existing paragraph four, which talks about bigger councils. He asked for clarity on that.
Mr Mileham referred to clause 19, and said that in the original proposal it had been proposed that only municipalities that had more than 40 councillors would be entitled to have a whip of council. He argued that in future, this was going to become a full-time remunerated position. If a small municipality of about 10 or 15 councillors was also entitled to a whip of council, they would then have to fund that position, which they could not afford. There was a problem with that. There was a need to stick to the numbers. He suggested the alignment of the number to the number in the deviation clause in clause eight. There should be 35 in clause eight, and there should be 35 in clause 19.
The Chairperson asked the Members if they could start a clause by clause discussion of the amendment bill.
Mr Mileham did not accept the idea of doing a clause by clause discussion in the absence of the amended B version of the bill.
The Chairperson suggested that the Committee discuss what had been presented and then take an hour break, to allow for the preparation of the B version of the amended bill. The Committee would have a clause by clause discussion after the break.
Dr Naidoo said that clause eight was sponsored by the Northern Cape. If there was a huge municipality and there were fewer than 35 councillors in that municipality, that municipality could deviate by up to 20% if fewer than 35 councillors had been generated by the formula for that municipality. It was just nine municipalities that fell into the band of greater than 20 000 square kilometers. So, if it was a large municipality with fewer than 35 councillors, the MEC could go there and deviate by not more than 20%.
Mr Mileham said the sub-section three did not apply only to municipalities in that category. It applied to all municipalities. Sub-section four talks about the deviation in terms of the number of councillors, unless limits were placed on the amount of the deviations in those municipalities as well, which was what the existing 4B did.
Ms Aadielah Arnold, State Law Advisor: Office of Chief State Law Advisor, Department of Justice, said that the way the bill was drafted at present was as if the whole of sub-section 24 would be replaced and there would only be sub-section four. The proposed draft A list fixes that. It retains A and B, and only C and D are being added. So A and B of the principal Act, section 24, would be retained, and C and D is just added.
Mr Mileham responded that if that was the case, there was a wording problem in C, as proposed in the A-list. It did not read correctly, so there was a need to re-draft it.
Mr Mileham was concerned about when the MEC gets to take this decision. On what basis could the MEC take this decision? The MEC would have to apply his mind and then take a decision to appoint a person if there had been a refusal or absence of the municipal manager. He suggested that this section be modified to clarify the point being made.
Dr Naidoo asked the Committee to let the Department apply its mind to the matter, and then compose something in the next version of the bill.
Ms B Maluleke (ANC) added that there was a need to investigate who informed the MEC. From his/her office in the province, the MEC could not prophesy that there was a problem in the municipality. How the information gets to the MEC should also be reflected.
Mr Mileham reminded the Committee that there had been a discussion about clause 16 the previous day about the quorum. The discussion had been about the requirement to determine a quorum and when that requirement was necessary. He asked for the Department's comment on that.
Dr Naidoo responded that two concerns had been raised. The first one was about the number required. It had been said that the number was the number that the MEC determined. The second concern related to the number that was considered at the time of voting, or if the numbers at the beginning of the meeting were still the same at the time of voting. Section 31 of the Structures Act provided for the concern that was raised. It reads: “The majority of the councillors must be present at the meeting of the council before the vote may be taken on any matter,” so the same number determined by the MEC was the same number that was required at the time of voting. The concerns raised on the previous day were largely taken care of in the present formulation of the provision of the Act as it is.
Ms Maluleke referred to clause 15, and said there must be a time frame for notifying the public about council meetings. If left like that, the council could just call a meeting and notify the public within two hours.
Mr B Duma, Acting Chief Director: Municipal Governance, COGTA KwaZulu-Natal (KZN), said that the Act prescribed that municipalities must have rules and orders. These rules and orders provide specifically that they cannot have a meeting without giving a notice. In some cases, it required 48 hours, and in some cases the requirement was five days. If it was a scheduled meeting, there was a need to give a seven-day notice. There was no way a municipal council could wake up in the morning and decide to hold a meeting.
Ms Maluleke asked if it catered for the new clause that was being inserted in the Structures Act about public notice.
Mr Duma responded that the section 29A of the Systems Act prescribed that the municipal council must put a notice on the notice board, website, etc. Typically, municipal councils would do that at the start of the financial year, or at the start of the calendar year.
Ms Arnold said that the fact that 29A speaks about "a manner determined" indicated that it would be set out before the time. This was to avoid the scenario where a meeting is called an hour before the time and no one knows about it. So, it must be a per-determined manner.
Dr Naidoo said that the Department had removed the qualification of 40 councillors. This was because, in terms of section 18 of the Structures Act, the Minister determines a policy framework for the designation of full time councillors. That vehicle was the appropriate vehicle to provide a cap on the size of the municipal council that required a full-time councilor, and not through the current legislation. This policy framework was last put out in 2011, and if there needed to be a revision of any ceiling limit or threshold for the appointment of full-time councillors, it should be done through that vehicle and not through the current bill.
Mr Mileham said he accepted what Dr Naidoo said, but did not agree with it because it was easy for the Minister to change his mind on a policy framework. However, when it was embedded in the legislation, it was a decision of Parliament and it was a legal imperative on him or her to stick to the rule. It would not be harmful to include a prescription on the number of councillors that a municipality must have before they can have a whip.
Mr Z Ngwezi (IFP) said that the number should remain at 40. It should not be left to the discretion of the Minister to decide, because some decisions were based on politically motivated circumstances. It was better to put a number and not leave it flexible.
Dr Naidoo said that it was important to be aware that the Minister determined a policy framework for full-time councillors, and that included Speakers, Mayors, Deputy Mayors etc. If a qualification for whips was included, there was a need to think about the implications for the other office bearers. Including the qualification of 40 would require justification for why the same did not apply to other office bearers.
Mr Mileham said that in the past there used the be qualifications in the Act, where it stated that certain municipalities could only have, for example, a Speaker, who may be referred to as a Mayor. That was in the Act, and it was not considered discriminatory. There were qualifications that allowed only a certain number to have certain things, and they were not considered discriminatory. Why was it now considered discriminatory if certain councils could not have a whip?
Dr Naidoo said there was not a qualification for other office bearers, because there was currently a full time Mayor, Speaker, etc in councils with fewer than 40 councillors.
Mr Lance Joel, Executive Director: South African Local Government Association (SALGA), referred to the amendment on whips, and said that the amendment was trying to cater for two scenarios. The first was where a person is incapacitated and unable to deliver on the whip's function, and there was provision made for an acting whip. The second scenario is when the person has been removed. As an interim measure, there was an acting whip before the proper election of a whip.
Mr Mileham said, regarding clause 29, that the municipal manager had 14 days to inform the chief electoral officer of a vacancy. If he did not inform the chief electoral officer within those 14 days, the MEC had a further 14 days to inform the chief electoral office of the vacancy. He asked what would happen if the MEC did not act.
Dr Naidoo responded that the Department was going to look at it. If it was not provided for in the in the laws, the Department would try to put something in the Act.
Mr Mileham pointed out that one issue that arose most of the time was where the Speaker did not act on breaches of the code.
Ms Arnold said that in clause 32, there was an insertion which required that if a Speaker of council was the alleged perpetrator, or the Speaker refused to authorise an investigation, the council must establish a special committee.
Mr Mileham said that there was often political interference to prevent a breach of conduct being investigated. He suggested that the insertion of a clause which stated that any failure to investigate may result in the MEC implementing section 106 of the Systems Act, which referred to investigations of misconduct in municipalities.
Mr Duma said that the code of conduct already provided for the MEC to investigate alleged misconduct by councillors. That was separate from 106, which dealt with maladministration and corruption in the municipalities.
The meeting was adjourned
- Traditional Leadership and Governance Framework Amendment Bill [B8D-2017]
- Traditional Leadership and Governance Framework Amendment Bill [B8C-2017]
- Traditional Leadership and Governance Framework Amendment Bill [B8B-2017]
- Traditional Leadership and Governance Framework Amendment Bill: proposed amendments
- Committee Report on Traditional Leadership and Governance Framework Amendment Bill [B8D-2017]
Mdakane, Mr MR
Dube, Mr J J
Maluleke, Ms B
Matsepe, Mr CD
Mileham, Mr K
Ngwezi, Mr X
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