Municipal Structures Amendment Bill; Customary Initiation Bill: NCOP Amendments

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Cooperative Governance and Traditional Affairs

10 February 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

Report of Select Committee on Cooperative Governance on Customary Initiation Bill 26 November 2020
Report of Select Committee on Cooperative Governance on Municipal Structures Amendment Bill 26 November 2020

The Portfolio Committee in a virtual sitting approved the NCOP amendments to the Local Government: Municipal Structures Amendment Bill [B19D-2018] and the Customary Initiation Bill [B12D-2018].

In its briefing on the Customary Initiation Bill, the Department emphasised that initiation seasons must take into account the school calendar and not interfere with children’s school attendance. It said Clause 28 is the most important provision of the Bill which deals with consent and age for circumcision. Initiation is a voluntary practice and no person may be forced to do so. Initiates cannot be younger than 16 and consent must be given by the initiate and parents or guardian. If an initiate is older than 18, the initiate must give consent. Male circumcision can only be performed by a registered medical practitioner or traditional surgeon under the supervision of a medical practitioner. Offenders at non-registered initiation schools face a period of 15 years imprisonment.

Members felt strongly about illegal initiation schools being investigated. Schools needed to accept full responsibility for any loss of life that occurred as a result of negligence. Questions were raised about the clause on offcences. The Committee agreed that the NCOP amendments are not far reaching or fundamental and approved them.

The Municipal Structures Amendment Bill consists of Independent Electoral Commission (IEC) proposals informed by challenges it experienced in the management of local government elections. The Bill also tackled governance matters such as the removal of plenary-type municipalities; errant councillors removed from office not being eligible to be a councillor for two years; municipalities establishing oversight committees with defined roles and responsibilities; if a speaker has breached the Code of Conduct or refuses to investigate a breach, the municipal council must establish a special committee to investigate.

The Committee noted that the NCOP amendments were not substantive and accepted them. Concerns were raised about the power of MECs and the possibility that impact reports could be changed by the executive committee before submission to the municipal council.  Members were also concerned that breaches of the Code of Conduct might be ignored by the Speaker. The Department pointed to Item 15(1) in the Code of Conduct in new Schedule 7 of the Amendment Bill as it does not allow the speaker discretion to ignore misconduct. It agreed to emphasise this when it sends out the implementation circular to municipalities.

In closing, the IEC said it was looking forward to having the necessary legislative provisions in place for the next local government elections.

Meeting report

The Chairperson welcomed new Members, Mr Mabika, Ms Spies and Ms Buthelezi. She commented that the Committee was not about political grandstanding and though Members may not always agree, they have always maintained mutual respect and understanding of the Committee’s core mandate.

The Customary Initiation Bill (CIB) responds to the ineffective regulation of initiation schools. The lack of a national legislative instrument for the customary practice of initiation has resulted in serious bodily harm to initiates. The processing of the Initiation Bill  began on 28 February 2018 during the previous Parliament. The Committee of the Fifth Parliament embarked on an extensive public hearing process travelling across provinces that participate in customary initiations. Oral submissions were heard and written input was sent to the Committee. The National Assembly passed the Bill on 4 December 2018 and it was sent to the NCOP for concurrence. The NCOP revived the Bill on 17 October 2020 and following its own public participation process, the Bill was adopted with amendments on 22 October 2020. The Bill was referred back to this Committee for concurrence after NCOP adoption.

The Municipal Structures Amendment Bill is based on the recommendations of the Independent Electoral Commission (IEC) and DCoG to strengthen oversight and governance in municipalities. The National Assembly debated the Bill on 25 February 2019 and referred it to the NCOP. The Bill was revived by the NCOP on 17 October 2019 after conducting its own extensive participation processes. The Bill was debated on 2 December 2020 and was referred back to the National Assembly with amendments.

Customary Initiation Bill (CIB) [B7D-2018]:briefing on NCOP amendments
Director-General at the Department of Traditional Affairs (DTA), Mr Mashwahle Diphofa, introduced the delegation from the Department.

Dr Renaldi Bester, DTA Chief Director: Legislation,  made a presentation to the Committee. The customary practice of initiation has been subject to abuse and has resulted in the death of initiates or caused serious bodily harm due to ineffective regulation of initiation schools. National and provincial laws to address initiation exists, but lack application. It was noted that there is no national law which deals with initiation comprehensively. The CIB aims to protect, promote and regulate initiation and ensure it takes place in a controlled and safe environment to protect life and prevent any abuse.

The CIB consists of 5 Chapters.

Chapter 1 deals with general matters such as definitions, interpretation, application of the Bill. It is important to note that the Bill will apply to all initiates, male and female irrespective of their age. The Bill has prohibitions which refer to names registered in the National Child Protection Register and the National Register for Sex Offenders. Any person listed in these registers may not be involved in initiation under any circumstances.

Chapter 2 deals with oversight and coordinating structures. Provision is made for a National Initiation Oversight Committee with 13 persons. Traditional leaders remain the custodians of these customary practices and will remain responsible for this. Other representatives are from the CRL Rights Commission, Department of Traditional Affairs, South African Police Service,  Department of Health, Department of Women, Youth and Persons with Disabilities, Department of Sports, Arts and Culture, National Prosecuting Authority, Interim Traditional Health Practitioners Council and if necessary, the Minister may appoint two experts in anthropology/customs or customary law.

An initiation hotline will be established.

Provision is made for Provincial Initiation Coordinating Committees (PICCs) consisting of nine or 11 members such as in the seven provinces with recognised provincial houses of traditional leaders and in those provinces where there is none or no recognised traditional leaders such as the Western Cape. Gauteng has no provincial house, but there are recognised traditional leaders.

The PICC will represent traditional leaders, provincial government, municipalities, emergency services and traditional health practitioners of the province. They will consider applications to hold initiation schools, register schools, develop requirements for schools, close schools not complying and conduct investigations. Traditional surgeons must be registered as an interim measure.

Chapter 3 deals with the roles, responsibilities and functions of role players such as government, houses of traditional leaders and Khoi-San leaders, traditional leaders, principals and care-givers, parents and guardians of initiates, traditional surgeons, medical practitioners, SAPS and the NPA.

Chapter 4 deals with initiation schools which must be registered and registration is only valid for a specific initiation season. Initiation seasons must take into account the school calendar and not interfere with children’s school attendance. Initiates may not be abused or assaulted under the guise of discipline as many initiates have died of assault and not circumcision. The death of an initiate must be reported to a principal immediately for investigation by SAPS. Initiates water and sanitation needs must be catered for.

Clause 28 is the most important provision of the Bill which deals with consent, prohibitions and age for circumcision. Initiation is a voluntary practice and no person may be forced to do so. An initiate may only attend an initiation school if consent was given and a medical certificate declares the initiate fit to undergo initiation. Initiates cannot be younger than 16 and consent must be given by the initiate and parents or guardian. If an initiate is older than 18, the initiate must give consent.

Male circumcision can only be performed by a registered medical practitioner or traditional surgeon under the supervision of a medical practitioner.

Chapter 5 deals with allowances, offences and appeals on initiation matters. A period of 15 years imprisonment applies for non-registered initiation schools.

The Bill's financial implications: National Initiation Oversight Committee (NIOC) and PICC members will be government officials, public office bearers or members of Chapter 9 institutions and will not be remunerated for this as they already receive salaries. The Department of Trade and Industry and provincial departments will have to cover travel and accommodation expenditure for them during initiation seasons.

Dr Bester went through the D version of the Bill and noted the highlighted sections that were amended by the NCOP.

Mr C Brink (DA) said that the changes made to the Bill by the NCOP are not far reaching or fundamental as it does not change any important provisions. It seems that it only seeks advice to deepen the protection of individual liberties and rights for the initiation process.

Ms P Xaba-Ntshaba (ANC) said the Bill was good and was being proposed to save the lives of the youth. She fully supported the Bill. Illegal initiation schools must be investigated and take full responsibility for the loss of life that occurred. Individuals responsible should be prosecuted, because they were negligent.

The Chairperson read a question from Mr K Ceza (EFF) [moved here from end of meeting] who asked what role the Traditional Council played in the acknowledgement of the well-known traditional surgeons and care-givers in ensuring that provincial departments have legitimate information? There is a difference between a care-giver and a traditional surgeon. Has the Bill considered this? Is there any involvement of medical doctors in imparting skills for initiation. He asked for clarity on the initiation seasons which may not overlap with school terms. He asked why clause 16(b) about the 15 years of imprisonment for holding non-registered initiation schools did not address consequences for initiation schools where initiate deaths have occurred in their care.

Mr Diphofa said that children should not miss out on school because of a clash between the school calendar and initiation seasons. When an initiate dies, the matter must be dealt with through other legislation such as the Criminal Procedure Act which is why it is not mentioned in the Bill.

The Chairperson interjected saying the Criminal Procedure Act was allowed to be cross referenced. There are many criminal acts taking place in churches, but it is common that the police do not address these matters as there is no Act which explicitly deals with these matters.

Mr Diphofa noted the Chairperson's comments.

In response to the Chairperson asking if this information could be included in a Department circular to create a link, Mr Diphofa agreed that the Department would look into this.

Mr Diphofa said there was a difference between a care-giver and a traditional surgeon. The Definitions section of the Bill defines a care-giver and traditional surgeon separately. Traditional leaders oversee Traditional Councils and have to assist in screening traditional surgeons for their registration. Medical doctors play a role in initiation and supervision of traditional surgeons.

Mr Bester referred to clause 33 on Offences which deals with the different offences in this particular Bill that are not covered by other laws. Clause 33(6) states that the death or abuse of initiates must be dealt with using the Offences clause provided in the Criminal Procedure Act, the Children’s Act, the Health Professions Act and the Drugs and Drug Trafficking Act.

Parliamentary Legal Advisor, Ms Phumelele Ngema, mentioned technical corrections to the D version by the Bills Office. Once the D version was approved it will forward the Bill to the President.

The Committee adopted the Bill and the Chairperson said it would be submitted to the National Assembly.

Local Government: Municipal Structures Amendment Bill [B19D-2018]
DCoG Director General, Ms Avril Williamson, introduced Department staff and said the Department hoped for a similar response as to the previous Bill.  

DCoG Executive Manager: Municipal Governance, Dr Kevin Naidoo, presented to the NCOP Amendments to the Municipal Structures Amendment Bill.

Initially, amendments to the Municipal Structures Act mostly dealt with proposals received from the Independent Electoral Commission (IEC). Proposals were informed by challenges experienced by the IEC in the administration and management of local government elections.

 DCoG, the South African Local Government Agency (SALGA), provinces and some municipalities have also proposed other amendments to the Bill, which are mainly to promote certainty on some matters and to strengthen oversight and governance in municipalities. Proposed amendments were informed by various consultative processes and engagements with stakeholders such as SALGA, the Municipal Demarcation Board (MDB) and the IEC.

See slides 7- 13 for specific information on governance and electoral amendments.

Clause 1:
The challenge with Clause 1 relates to various dates that are considered by municipal councils as to when a councillor assumes office after an election. Some municipalities considered the date of the election as the date when the councillor assumes office. Some used the date the results were released and others considered it to be the date of the first council meeting.

To provide certainty and for uniform application across all municipalities, it was decided that the date of the publication of results by the IEC would be the date when a councillor assumes office.

Clause 2:
All reference to District Management Area (DMA) in the Act will be removed as it is obsolete.

Clause 3, 4, 5:
There are various limitations with the plenary-type municipality and this should be removed. Challenges experienced by plenary-type municipalities include the limiting of executive authority to the full council and it is unable to delegate its executive responsibilities to any individual councillor, or to any of its committees. The Mayor is also the Speaker of the Council, and this results in a concentration of power in one individual and undermines checks and balances and accountability.

Clause 6:
Clause 6 gives effect to the removal of the DMA

Clause 7:
Clause 7 refers to deepening democracy with a minimum of ten councillors in a municipality.  

Clause 8:
Clause 8 deals with councillors that are removed from office by a MEC for a breach of the Code of Conduct and may immediately thereafter still become a councillor. If a councillor is removed from office in future, s/he will not be eligible for a period of two years.

Clause 9:
Clause 9 refers to an elected councillor who will be deemed to assume office on the date of the declaration of the results of an election.

Clause 10:
Clause 10 makes reference to the removal of the DMA.

Clause 11:
Clause 11 relates to electoral matters. It is not practical to proclaim an election within 14 days. The IEC has relied on Municipal Managers defaulting and handing over this responsibility to the MEC affording more time for participation and logistical preparation.

The Municipal Manager (MM) must inform the MEC within 14 days when a vacancy has arisen.

The MEC is empowered to call and set the date for by-elections in consultation with the IEC (instead of the MM) by Notice in the Provincial Gazette (instead of in a local newspaper), to avoid delays.

Clause 12:
Clause 12 relates to local council representatives to the District Council that are replaced without being appointed by the Chief Electoral Officer. Instructions also come from political parties about councillors having to vacate office which is an unauthorized source. This will be amended.

Clause 13:
Clause 13 relates to municipal operations that are sometimes stopped by the refusal of a Speaker, Acting Speaker or Municipal Manager to convene a meeting of the Municipal Council. This section will be amended to ensure a person designated by the MEC must call a meeting in instances where the Speaker / Acting Speaker refuses to do so.

Clause 14:
Clause 14 relates to an amendment which will require the MM to give notice to the public of various meetings of the Municipal Council, except when time constraints make this impossible.

Clause 15:
There is inconsistent application in determining the number of seats in a Municipal Council when determining the quorum for holding meetings. There is uncertainty as to when a Presiding Officer has a casting vote. The number that must be considered when deciding on a quorum must be based on the number of councillors as determined by the MEC and not the number of incumbents which excludes vacancies. A councillor presiding at a meeting may not have a casting vote, for example, in by-laws.

Clause 16:
With the abolition of the plenary-type municipality, a councillor may not hold office as Speaker and Mayor in any municipality.

Clause 17:
This provides for additional functions for the Speaker. The executive and legislative authority of a municipality is vested in its Municipal Council. There is often conflict between the Executive Mayors/Mayors and Speakers on their roles.  The Speaker will be empowered to ensure the Municipal Council effectively fulfills its various responsibilities.

Clause 18:
There is no provision that provides for the establishment of the Office of the Whip and the functions of this office-bearer. There is now a provision providing for the appointment or election of a whip in council.

Clause 19:
The election of members of Executive Committees can be time consuming and complex. There is no standard formula for the composition of Executive Committees across all municipalities. There should now be a uniform formula when composing the Committee. Political parties will now be able to identify their own members to occupy seats on the Executive Committee which will not be subject to another election by the Council.

Clause 20:
Executive Committees tend to be overburdened with reports from many Committees of Council as it is the principal Committee in a municipality. Amendments will ensure the Executive Committee only receives reports from Section 80 Committees which are established to assist Executive Committees.

Clause 21
An Executive Mayor receives reports from many Committees of Council which overburdens them. The amendment will ensure Executive Mayors only receive reports from Section 80 Committees which assist Executive Committees and Executive Mayors.

Clause 22:
There is no time limit on when Ward Committees must be established. This will be amended to ensure municipalities establish Ward Committees within 120 days after the election of all municipal councils.

Clause 23:
There is a need for all municipalities to establish oversight committees with defined roles and responsibilities. Amendments will strengthen oversight and promote governance in municipalities. Amendments will indicate which councillors may be members of the Committee and will provide for their roles and responsibilities.

Clause 24:
The proposed amendments for Clause 24 refer to the Systems Act (Schedule 1) which was removed as the Code of Conduct for councillors migrated from the Systems Act into the Act.

Due to the enactment of the Traditional and Khoi-San Leadership Act, 2019, the clause is no longer relevant.

The Department of Traditional Affairs has drafted proposed amendments to the clause for consideration by the Select Committee.

Clause 25:
Clause 25 has been repealed in alignment with Section 6 of the Act.

Clause 26:
Clause 26 refers to a general amendment. Sections in the Act are deleted where it refers to plenary-type of municipality.

Clause 27:
The seat allocation formula may result in the number of seats allocated exceeding the number of seats in council. Political parties will be given two days to supplement their list when the existing list of the party has fewer candidates than the party is entitled to.

There are no time limits for parties to respond to multiple seats and insufficient seats. The proposed amendments will prescribe a procedure for the redistribution/recalculation of seats.

Currently seven days are allocated to report a councillor vacancy which is not realistic and is insensitive in the event of death. The Municipal Manager or MEC must report a vacancy within 14 days.

Changing the order “at any time” on a candidate list is in conflict with the CEO's responsibility to certify a list of candidates. The amendment will ensure that a political party may not supplement or change its list from the date of the close of candidate nomination and it can do this only after election results have been declared.

Clause 28:
There are no time limits for parties to respond to multiple seats or insufficient seats. The amendment proposed is that if a candidate is assigned to more than one seat, s/he or the party has two days to inform the IEC of this decision.

Parties may not supplement or increase its list later than 21 days after a councillor has ceased to hold office.

Clause 29:
This is amended to include the Whip as an office-bearer.

Clause 30:
This remedies that there is no provision to investigate a breach of the Code when the Speaker is the perpetrator as well as the lack of a requirement and timeframe for the Speaker to inform the MEC of the sanction applied for a breach of the Code.

The amendment proposed is that Schedule 1 of the Municipal Systems Act be migrated to this Act. If a Speaker is an alleged perpetrator or refuses to investigate a breach, Council must establish a special committee to investigate.

Clause 31
Section 19 and Schedule 1 (Public notice of meetings of municipal councils and Code of Conduct for councillors) of the Municipal Systems Act is repealed and is migrated into this Act.

Clause 32
The Local Government: Municipal Structures Amendment Act, 2018 will come into operation on a date determined by the President by proclamation in the Gazette.

See D-Version of Municipal Structures Amendment Bill to see highlighted NCOP amendments.   

Mr Granville Abrahams, IEC National Senior Manager: Electoral Operations,  said the Bill began more than five or six years ago with the IEC initiating discussions on challenges it experienced with by-elections and candidate nominations. Since then, the Bill has grown and the IEC has been a part of the entire process including public hearings. The proposals for amendment made by the IEC are about administrative challenges. Some proposals have already been put into practice such as all by-elections being proclaimed by MECs as 14 days does not allow the IEC to get a voters roll that is of a standard to provide free and fair elections. The IEC looked forward to having the necessary legislative provisions in place for the next election.

Mr Brink said that in the discussion on the Bill in the Fifth Parliament, the DA raised some objections. At the time, the DA raised concerns about the cost implications of making the minimum threshold of councillors which was 15 reduced to 10. Concerns were raised about the power of MECs. No real fundamental changes had been made in the D version of the Bill and most of these were technical in nature. He asked if there were any fundamental consequences arising from the NCOP amendments that the Committee had not picked up on?

Dr Naidoo replied that changes have been of a technical nature to clean up the Bill and comply with drafting conventions. The State Law Advisor should confirm this.

Mr I Groenewald (FF+) said he was a councillor for eight years so he knew the consequences of impact reports. There have been situations in the past where impact reports are sent to the mayor and the executive committee changes the report before it is tabled to council. He was worried that the reports would be changed when submitted to the Speaker and Municipal Council. He referred to Item 15(1) in Schedule 7 and said that when misconduct of a councillor was reported to the Speaker, the Speaker had the discretion to decide whether to investigate. The Speaker is not the only person who is able to make a decision on this matter. He proposed that such reports must be investigated if another councillor reports a case of misconduct.

Dr Naidoo replied that if reports are changed this would be irregular and this would be pointed out in the circular that will be issued once the Bill is enacted. The State Law Advisor would need to advise on the amendment for when a councillor reports misconduct of a fellow councillor. A Mediation Committee would need to be set up.

The Chairperson said that when a councillor is removed, they are not able to come back. The Department should be commended for this regulation and it will assist to bring stability. She acknowledged the IEC's contribution.

The Director General said the comments made were invaluable.

Dr Naidoo said the clause about the removal of a councillor was the most spoken about in all the engagements the Department has had. This clause has received a lot of support from citizens and political parties. He personally believed the clause would address some of the mischief out there. This is a milestone moment and he would like to thank all the stakeholders involved in the engagements.

The Chairperson asked the State Law Advisor to comment.

Ms Aadielah Arnold, State Law Advisor, confirmed that the NCOP amendments are mainly technical in nature. Grammar has been corrected in various clauses and there is nothing substantive that has been amended. She had spoken to the Parliamentary Law Advisor, Ms Fatima Ebrahim, who confirmed that the NCOP amendments are very technical and provide clarity.

When a breach of the Code is reported, the Committee must refer to Item 15(5) of the Code which provides for when the perpetrator is a councillor. The Council must establish a Special Committee if the Speaker refuses to investigate.

Ms Arnold noted that the legislative process does not allow further amendments to the NCOP Bill, but if a proposed NCOP amendment is rejected, a mediation process must be followed.

Mr Abrahams of the IEC thanked the Committee and the Department for their contributions over a period of six years from when the Bill was initiated. The local government election is on our doorstep and the IEC looks forward to seeing the Amendment Bill enacted as it approaches the election. The amendments will definitely assist the IEC in the general elections and the next term's by-elections.

Mr Brink said he wanted to add to what Mr Groenewald had said. He wanted to be more explicit. As the Code stands, it is quite clear that if the Speaker is of the opinion that the Code has been breached, they must take certain actions. Nothing precludes a councillor from bringing this to the attention of the Speaker. A Speaker is compelled to act on such information and the provisions stated by Ms Arnold must be taken into account when a Speaker refuses to investigate such a report. He asked for confirmation on whether a councillor could be prevented from reporting misconduct and if this standard was set in the Code of Conduct.

Mr Groenewald said there was no recourse for councillors who have laid charges with the Speaker. This should be addressed in a circular from the Department.

Dr Naidoo replied that he thought it was a matter of interpretation. If this clause is unclear as it reflects in the Code of Conduct, this could be clarified in the implementation circular from the Department.

Mr Brink supported the resolution that the matter should be clarified in the implementation circular.

The Committee adopted the D version of the Bill containing the proposed NCOP amendments.

The Chairperson thanked the Department and stakeholders for their contributions to the meeting.

The Committee considered and adopted its minutes for 20, 21, 23, 27 October, 3, 4, 10, 13, 17, 18, 24, 25, 27 November and 1, 2, 3, 4 December meetings.

The Committee agreed that there should be follow-up on meeting resolutions. The Chairperson requested that there be a resolution register in future. 

The meeting was adjourned.

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